Dish Network, LLC

370 NLRB No. 97 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Dish Network, LLC and Brett Denney. Case 27‒CA‒ 158916 March 18, 2021 BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND RING SUPPLEMENTAL DECISION, ORDER, AND NOTICE TO SHOW CAUSE On April 13, 2017, the National Labor Relations Board issued a Decision and Order finding that the Respondent violated Section 8(a)(1) of the National Labor Relations Act (the Act) by maintaining a mandatory arbitration agreement (Agreement) that employees reasonably would believe bars or restricts them from accessing the Board and its processes and by requiring employees to maintain the confidentiality of all arbitration proceedings, including but not limited to hearings, discovery, settlements, and awards. Dish Network, LLC, 365 NLRB No. 47 (2017). Additionally, the Board found the Respondent violated Section 8(a)(1) of the Act by prohibiting an employee from discussing his discipline with other employees. Id. The Respondent filed a petition for review with the United States Court of Appeals for the Fifth Circuit, and the Board filed a cross-application for enforcement. On July 9, 2018, the Respondent and the General Counsel filed a joint motion asking the court to sever and remand the Board access and confidentiality allegations in light of Boeing Co., 365 NLRB No. 154 (2017). The parties also informed the court that they had reached a “resolution of the Board’s finding that DISH unlawfully told an em- ployee not to discuss discipline with others,” and they re- quested withdrawal of the petition for review and cross- application for enforcement of the relevant part of the Board’s order. On July 18, 2018, the court remanded the case to the Board in its entirety.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Having considered the Board’s previous decision and the record, we find, as discussed below, that the Agree- ment unlawfully restricts access to the Board. We further find that the Agreement’s confidentiality requirement is unlawful in one respect. As explained below, and contrary to our dissenting colleague’s contention, that requirement is lawful to the extent it mandates that arbitration proceed- ings, including hearings, discovery, and awards, be kept 1 The court explained that it was including the prohibition on discuss- ing discipline in the remand for “judicial efficiency.” confidential. However, we reach the opposite conclusion regarding the requirement that settlements remain confi- dential. Additionally, we shall issue a Notice to Show Cause why the allegation concerning prohibiting an em- ployee from discussing his discipline should not be re- manded to the Regional Director for further appropriate action. I. FACTS The Respondent, a Colorado corporation with its head- quarters in Englewood, Colorado, provides satellite tele- vision and other media services. Since October 24, 2013, the Respondent has required all applicants for employment to sign the Agreement. The Agreement provides, in relevant part, as follows: This Mandatory Arbitration of Disputes—Waiver of Rights Agreement (“Agreement”) acknowledged today between DISH Network L.L.C. and all of its affiliates (the term “affiliates” means companies controlling, con- trolled by or under common control with, DISH Net- work L.L.C.) (DISH Network L.L.C. and its affiliates are individually and collectively referred to herein as “DISH”) and me (“Employee”). In consideration of the Employee’s employment by DISH (and/or any of its af- filiates) as good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Employee and DISH agree that any claim, controversy and/or dispute between them, arising out of and/or in any way related to Employee’s application for employment, employment and/or termination of employment, when- ever and wherever brought, shall be resolved by arbitra- tion. The Employee agrees that this Agreement is gov- erned by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., and is fully enforceable. . . . . Regardless of what the above-mentioned Rules state, all arbitration proceedings, including but not lim- ited to hearings, discovery, settlements, and awards shall be confidential and shall be held in the city in which the Employee performs services for DISH as of the date of the demand for arbitration, or in the event the Employee is no longer employed by DISH, in the city in which the Employee last performed services for DISH. The arbi- trator’s decision shall be final and binding, and judgment upon the arbitrator’s decision and/or award may be en- tered in any court of competent jurisdiction. Since at least March 1, 2015, the Respondent has main- tained the Agreement (or a similar version of the Agree- ment) at all its locations nationwide. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Charging Party Brett Denney was employed by the Re- spondent at its Littleton, Colorado Call Center from about November 1, 2013, through March 11, 2015. On about March 3, 2015, the Respondent, by General Manager Emily Evans, suspended Denney and told him not to dis- cuss his suspension with his coworkers. II. DISCUSSION The court has remanded three issues: (i) whether the Agreement unlawfully restricts access to the Board and its processes, (ii) whether the Agreement unlawfully requires confidentiality, and (iii) whether the Respondent unlaw- fully instructed an employee to not discuss his suspension. Below, we consider the first two issues on the merits and explain that the third issue warrants the issuance of a No- tice to Show Cause. A. Restricting Access to the Board In Epic Systems Corp. v. Lewis, 584 U.S. ___, 138 S. Ct. 1612 (2018), the Supreme Court emphasized that arbi- tration agreements are to be enforced as written pursuant to the Federal Arbitration Act (FAA). However, the Court has also held that this mandate “may be ‘overridden by a contrary congressional command.’” Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10, slip op. at 5 (2019) (quoting Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 226 (1987)). In Prime Healthcare, the Board explained that Section 10 of the Act establishes just such a contrary congressional command with respect to arbitration agreements that interfere with the right of employees to file charges with the Board. Spe- cifically, we explained that under Section 10(b) of the Act, the Board has no power to issue complaint unless an unfair labor practice charge is filed, and Section 10(a) of the Act relevantly provides that the Board’s power to prevent un- fair labor practices “shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise.” Thus, notwithstanding the Supreme Court’s decision in Epic Systems, the FAA does not authorize the maintenance or enforcement of agreements that interfere with the right to file charges with the Board. Id. 2 Under Boeing, the Board first determines whether a challenged rule or policy, reasonably interpreted, would potentially interfere with the ex- ercise of rights under Sec. 7 of the Act. Id. If not, the rule or policy is lawful and placed in Category 1(a). If so, the Board determines whether an employer violates Sec. 8(a)(1) of the Act by maintaining the rule or policy by balancing “the nature and extent of the potential impact on NLRA rights” against “legitimate justifications associated with the rule,” viewing the rule or policy from the employees’ perspective. Id., slip op. at 3. As a result of this balancing, the Board places a challenged rule into one of three categories. Category 1(b) consists of rules that are lawful to maintain because, although the rule, reasonably interpreted, potentially interferes with the exercise of Sec. 7 rights, the interference is An arbitration agreement that “explicitly prohibits the filing of claims with the Board or, more generally, with administrative agencies must be found unlawful.” Id. Where an arbitration agreement does not contain such an express prohibition—i.e., where the arbitration agreement in question is facially neutral—the Board applies the standard set forth in Boeing and determines “whether that agreement, ‘when reasonably interpreted, would poten- tially interfere with the exercise of NLRA rights,’” such as the right to file charges with the Board. Id. (quoting Boeing, 365 NLRB No. 154, slip op. at 3).2 Such interfer- ence exists when an arbitration agreement, “taken as a whole, make[s] arbitration the exclusive forum for the res- olution of all claims, including federal statutory claims un- der the National Labor Relations Act.” Id., slip op. at 6 (emphasis in original). Further, “as a matter of law, there is not and cannot be any legitimate justification for provi- sions, in an arbitration agreement or otherwise, that re- strict employees’ access to the Board or its processes.” Id. Here, the Agreement requires that employees arbitrate “any claim, controversy and/or dispute between them, arising out of and/or in any way related to Employee’s ap- plication for employment, employment and/or termination of employment, whenever and wherever brought.” Such language makes arbitration the exclusive forum for resolv- ing all employment-related disputes between the Re- spondent and any of its employees, including claims aris- ing under the Act, thus restricting employees’ access to the Board and rendering the Agreement unlawful. See, e.g., id.; Century Fast Foods, Inc., 370 NLRB No. 4, slip op. at 3‒4 (2020) (finding unlawful an agreement requiring “any claims” to be resolved by arbitration); IIG Wireless, Inc. f/k/a Unlimited PCS, Inc.; & UPCS CA Resources, Inc., 369 NLRB No. 66, slip op. at 2 (2020) (finding unlawful an agreement requiring that “any dispute or controversy . . . arising from or in any way related to my employment with the Company, shall be submitted to and determined by binding arbitration”); Beena Beauty Holding, Inc. d/b/a Planet Beauty, 368 NLRB No. 91, slip op. at 2–3 (2019) (finding unlawful an agreement requiring employer and outweighed by legitimate employer interests. Category 3, in contrast, consists of rules that are unlawful to maintain because their potential to interfere with the exercise of Sec. 7 rights outweighs the legitimate in- terests they serve. Categories 1(a), 1(b) and 3 designate types of rules: once a rule is placed in one of these categories, rules of the same type are categorized accordingly without further case-by-case balancing (for Cat- egory 1(b) and 3 rules; balancing is never required for rules in Category 1(a)). Some rules, however, resist designation as either always lawful or always unlawful and instead require case-by-case analysis under Boe- ing’s balancing framework. These rules are placed in Category 2. See id., slip op. at 3‒4; LA Specialty Produce Co., 368 NLRB No. 93, slip op. at 2‒3 (2019). DISH NETWORK, LLC 3 employees “to submit any claims that either has against the other to final and binding arbitration”). Accordingly, we find the Respondent violated Section 8(a)(1) by maintaining the Agreement on the basis that the Agreement restricts employees’ right to file charges with the Board, and we place the language restricting the exer- cise of that right in Boeing Category 3. B. Confidentiality Provision The General Counsel alleges that the Agreement unlaw- fully prohibits employees from discussing their terms and conditions of employment by requiring that “all arbitra- tion proceedings, including but not limited to hearings, discovery, settlements, and awards shall be confidential.” In California Commerce Club, Inc., 369 NLRB No. 106, slip op. at 6 (2020), we held that “provisions in an arbitra- tion agreement requiring that arbitration be conducted on a confidential basis, including provisions precluding the disclosure of evidence, award, and/or decision beyond the arbitration proceeding, do not violate the Act and must be enforced according to their terms pursuant to the FAA.” Applying this holding here, we find the Agreement’s con- fidentiality requirement does not violate the Act insofar as it pertains to arbitration proceedings, including hearings, discovery, and awards. Reasonably interpreted, the provi- sion requiring that arbitral “proceedings” be confidential is not materially different from the provision, found lawful in California Commerce Club, requiring that arbitration be conducted on “a confidential basis.” Id.; see also Cove- nant Care California, LLC, 369 NLRB No. 112, slip op. at 2 (2020) (agreement lawfully required that “[t]he pro- ceedings before the arbitrator . . . shall be of a private na- ture and kept confidential”). Similarly, we find lawful the Agreement’s requirement of confidentiality of “awards,” as it accords with the finding in California Commerce Club that parties may lawfully agree that there shall be no disclosure of the “award/decision beyond the arbitration proceeding.” 369 NLRB No. 106, slip op. at 6; see also Covenant Care California, LLC, 369 NLRB No. 112, slip op. at 2 (agreement lawfully required that any award or remedy shall be kept confidential). Likewise, the require- ment that hearings and discovery remain confidential is not materially different from the prohibition, found lawful in California Commerce Club, against disclosing evidence beyond the arbitration proceedings. Plainly, the Agree- ment’s reference to “discovery” concerns the procedure for obtaining evidence, and “hearings” refers to the pro- ceedings where evidence is introduced into the record. Therefore, the Agreement’s requirement that arbitration proceedings, and specifically hearings, discovery, and awards, be kept confidential sets forth rules under which 3 See 9 U.S.C. §§ 4, 10. arbitration will be conducted, which must be enforced pur- suant to the FAA. See, e.g., Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479 (1989). Accordingly, those terms do not violate the Act. See California Commerce Club, 369 NLRB No. 106, slip op. at 6‒7. However, the requirement that “settlements” be kept confidential implicates different considerations and war- rants a different result. This provision is not shielded by the FAA. As the Supreme Court has held, “the FAA re- quires that courts rigorously enforce arbitration agree- ments according to their terms, including terms that spec- ify . . . the rules under which . . . arbitration will be con- ducted.” American Express Co. v. Italian Colors Restau- rant, 570 U.S. 228, 233 (2013) (internal quotations and citations omitted). However, “confidentiality require- ments beyond the scope of the arbitration proceeding and ‘the rules under which the arbitration will be conducted’ receive no protection from the FAA.” California Com- merce Club, 369 NLRB No. 106, slip op. at 1. Here, the requirement that “settlements” remain confidential lies be- yond the scope of the arbitration proceeding and the rules under which arbitration will be conducted. Settlements are effectively an alternative to arbitration. That is, a set- tlement removes a dispute from arbitration or prevents it from going to arbitration in the first place. The FAA does not speak to settlements. Parties cannot seek to compel settlements or settlement discussions under the FAA, as they can arbitration.3 Having found that the portion of the confidentiality pro- vision governing settlements is not shielded by the FAA, we next determine whether the maintenance of this provi- sion violates the Act. We find that it does. By its terms, the Agreement covers “any claim, controversy and/or dis- pute . . . arising out of and/or in any way related to Em- ployee’s application for employment, employment and/or termination of employment.” Obviously, some such dis- putes would not arise under the NLRA, such as claims of discrimination based on race, sex, age, or disability. But just as obviously, some would. Moreover, the events giv- ing rise to all claims covered by the Agreement would concern wages, hours, or other terms or conditions of em- ployment; employees’ conversations with one another concerning those events do implicate the Act; and nothing in the Agreement’s settlement-confidentiality provision limits its scope. See, e.g., St. Margaret Mercy Healthcare Centers, 350 NLRB 203, 205 (2007) (“It is axiomatic that discussing terms and conditions of employment with coworkers lies at the heart of protected Section 7 activ- ity.”), enfd. 519 F.3d 373 (7th Cir. 2008). Accordingly, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 by prohibiting employees from disclosing the terms of any settlement, the Agreement explicitly restricts Section 7 ac- tivity. Indeed, the Agreement operates as a prospective waiver of this important Section 7 right, and, as the Su- preme Court held long ago, individual agreements be- tween employer and employee prospectively waiving Sec- tion 7 rights violate the Act. See National Licorice Co. v. NLRB, 309 U.S. 350, 360 (1940).4 Moreover, the Agreement’s confidentiality requirement covers all settlements, and particular settlements may con- tain terms that would render them unlawful under the Act.5 But a Board charge alleging that a particular settlement violates the Act would require disclosure of the allegedly unlawful term or terms. Thus, employees would reasona- bly interpret the requirement that all settlements remain confidential to prohibit them from filing Board charges al- leging that particular settlements violate the Act. Thus, the settlement-confidentiality requirement is also unlaw- ful on the basis that it interferes with the right to file Board charges.6 And as we held in Prime Healthcare, “there is not and cannot be any legitimate justification for provi- sions, in an arbitration agreement or otherwise, that re- strict employees’ access to the Board or its processes.” 368 NLRB No. 10, slip op. at 5. For these reasons, we find that the Respondent violated Section 8(a)(1) of the Act by maintaining a requirement in its Agreement that settlements be kept confidential. In finding this requirement unlawful, we emphasize that our holding does not prevent employers and employees 4 Again, as we explained at length in California Commerce Club, supra, employers may lawfully require employees to agree to resolve em- ployment-related disputes through confidential arbitration because such agreements are shielded by the FAA. That shield is inapplicable to the requirement that settlements remain confidential for the reasons ex- plained above. With that shield removed, lawfulness is determined by applying the Act. In California Commerce Club, the Board assumed, without deciding, that the confidentiality provision at issue there, which addressed the pro- cedures by which the arbitration would be conducted, would have vio- lated the Act under a Boeing balancing analysis absent the FAA shield. That analysis is inapplicable here because the settlement-confidentiality provision necessarily restricts discussion of terms and conditions of em- ployment. That was not the case in California Commerce Club, as the Board there explained. See 369 NLRB No. 106, slip op. at 6. 5 See, e.g., Ishikawa Gasket America, Inc., 337 NLRB 175, 175‒176 (2001) (finding unlawful an agreement that required an employee, for 1 year, not to “engage in any conduct which is contrary to the Company’s interests in remaining union-free”), enfd. 354 F.3d 534 (6th Cir. 2004). 6 The Agreement at issue here does not contain a savings clause, i.e., a clause providing that employees “retain the right to file charges with the Board, even if the agreement otherwise includes claims arising under the Act within its scope.” Everglades College, Inc. d/b/a Keiser Univer- sity, 368 NLRB No. 123, slip op. at 3 fn. 3 (2019). 7 Confidentiality provisions often facilitate the settlement of claims that involve disputed facts or accusations that raise privacy or reputa- tional issues for the parties or other affected individuals or entities, and from lawfully agreeing to confidential settlements. In- deed, we recognize that confidentiality may facilitate the resolution of workplace conflicts and thus further the Board’s policy “of encouraging the peaceful, nonlitigious resolution of disputes.” Independent Stave Co., 287 NLRB 740, 741 (1987); see also Wallace Corp. v. NLRB, 323 U.S. 248, 253–254 (1944) (“[T]he Board has from the very beginning encouraged compromises and settle- ments.”).7 Nothing in our decision today stands in the way of negotiated confidentiality provisions of this nature, and the Board will find such provisions lawful in appropriate circumstances.8 However, the Act does not permit em- ployers to condition employment on a prospective waiver of statutory rights, nor may any agreement lawfully inter- fere with the right to file Board charges. Because the pro- vision requiring that settlements be kept confidential is not shielded by the FAA and contravenes these principles, we find that it violates Section 8(a)(1) of the Act. C. Response to Dissent Our colleague, dissenting in relevant part, disagrees with our finding that the Agreement’s confidentiality re- quirement for arbitration proceedings, including hearings, discovery, and awards (hereafter the “confidential arbitra- tion proceedings” provision), is lawful. Resurrecting ar- guments rejected by the Supreme Court in Epic Systems, the dissent contends that this provision violates the Act because it interferes with employees’ right to discuss their terms and conditions of employment and is not shielded by the FAA. Our colleague also contends that this they may protect the party defending against a claim from being unfairly branded a wrongdoer simply because the party settled the claim. See generally Alison Lothes, Quality, Not Quantity: An Analysis of Confi- dential Settlements and Litigants’ Economic Incentives, 154 U. Pa. L. Rev. 433, 441 (2005). Another justification for settlement confidential- ity is to prevent additional claims being asserted by other similarly situ- ated persons if they learn of the settlement’s terms and find them advan- tageous. Id. However, similarly situated employees would discover that they are similarly situated through discussions that often lie at the heart of protected Sec. 7 activity. Analytically, the fact that a provision re- stricts Sec. 7 activity cannot serve as a legitimate justification for its maintenance. 8 See, e.g., S. Freedman & Sons, Inc., 364 NLRB No. 82, slip op. at 2 (2016), enfd. 713 Fed. Appx. 152 (4th Cir. 2017). In that case, the Board found lawful a provision in a settlement agreement between the employer and a union-represented employee resolving a grievance over the employee’s discharge, in which the employee was reinstated and the parties agreed to keep the terms of the settlement confidential. In finding the confidentiality provision lawful, the Board emphasized that it was narrowly tailored to the facts that gave rise to the settlement, the em- ployee received a benefit (reinstatement) in return for his limited waiver of Sec. 7 rights, and the settlement did not bind the union, which was free to share its terms with employees. The confidentiality provision here, in contrast, applies prospectively to any future settlement between the em- ployer and employees regardless of its terms, and employees receive no benefit in return for the waiver of Sec. 7 rights. DISH NETWORK, LLC 5 provision unlawfully interferes with the ability of employ- ees to file charges with the Board. For the following rea- sons, we reject these contentions. As the dissent correctly recognizes, the determinative issue here is whether the confidential arbitration proceed- ings provision is shielded by the FAA. By its terms, that provision only applies to “arbitration proceedings,” re- quiring that they be confidential. It thus specifies one of the rules under which arbitration proceedings will be con- ducted, and the Supreme Court has repeatedly made clear that “the FAA requires that courts rigorously enforce arbi- tration agreements according to their terms, including terms that specify . . . the rules under which . . . arbitration will be conducted.” American Express Co. v. Italian Col- ors Restaurant, 570 U.S. at 233 (internal quotations and citations omitted). The requirement that courts “rigor- ously enforce” such provisions means that the Board may not invalidate them either, unless the FAA has been dis- placed by a “contrary congressional command.” Shear- son/American Express, Inc. v. McMahon, 482 U.S. 220, 226 (1987). In such a case, however, Congress’s “inten- tion must be clear and manifest.” Epic Systems, 138 S. Ct. at 1624 (internal quotation marks omitted). And the Court made plain that a party seeking to demonstrate such a clear and manifest intention faces a very steep climb. See id. at 1627.9 As we explained in California Commerce Club, supra, nothing in Section 7 of the Act rises to the level of a con- trary congressional command that would displace the FAA. To the contrary, that notion was squarely rejected by the Supreme Court in Epic Systems. As the Court there explained, Section 7 of the NLRA “does not express 9 We found such a contrary congressional command in Prime Healthcare, supra, in Sec. 10 of the Act. As we explained there, under Sec. 10(b) of the Act, Congress empowered the Board to issue a com- plaint only “[w]henever it is charged that any person has engaged in or is engaging in any . . . unfair labor practice,” and in Sec. 10(a), it further provided that the Board’s power to prevent unfair labor practices “shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise.” Based on this clear and manifest contrary congressional command, we held in Prime Healthcare that an arbitration agreement that explicitly prohibits the filing of charges with the Board or makes arbitration the exclusive forum for resolving claims arising under the NLRA must be found un- lawful. There is a fundamental difference between an arbitration-exclu- sivity provision and an arbitration-confidentiality provision that specifies rules under which the arbitration will be conducted and says nothing about access to the Board. Moreover, nothing in either Sec. 10 or Sec. 7 of the Act provides such a clear congressional command with regard to confidentiality in arbitration agreements or arbitration proceedings. 10 We agree with our dissenting colleague that the Board should strive to harmonize the FAA and the Act to the extent it is possible to do so. Our decision today does just that: we give effect to the FAA’s require- ment that arbitration proceedings be conducted as the parties agree they should with respect to confidentiality, we find that confidentiality re- quirements related to settlements are outside the FAA’s scope, and we approval or disapproval of arbitration. It does not mention class or collective action procedures. It does not even hint at a wish to displace the Arbitration Act—let alone accom- plish that much clearly and manifestly, as our precedents demand.” 138 S. Ct. at 1624. The dissent’s contention that “invalidating arbitration-confidentiality provisions, because of their demonstrable impact on Section 7 rights, is the proper accommodation between the NLRA and the FAA” cannot be reconciled with this precedent.10 The dissent’s argument that arbitration confidentiality provisions may be invalidated under the FAA saving clause fares no better. That clause provides that arbitra- tion agreements are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. Relying on this clause, our dissenting colleague posits “that notwithstand- ing the FAA, confidentiality provisions that prospectively waive employee rights to engage in protected Section 7 communications are . . . unlawful under the NLRA when they appear in arbitration agreements, just as in any other contract,” and are unenforceable. This is precisely the same argument advanced by the Board majority in Mur- phy Oil to invalidate agreements between employers and employees that mandate individual arbitration. See Mur- phy Oil USA, Inc., 361 NLRB 774, 779 (2014), enf. denied in relevant part 808 F.3d 1013 (5th Cir. 2015) (“[N]ot only does the text of the FAA fail to establish that an arbitration agreement inconsistent with the NLRA is nevertheless en- forceable, but the savings clause in Section 2 of the FAA affirmatively provides that such a conflict with federal law is grounds for invalidating the agreement.”).11 That anal- ysis was rejected by the vast majority of lower courts that reiterate the Act’s protections against job-related reprisals. See Califor- nia Commerce Club, supra, slip op. at 6 (employer entitled to maintain a mandatory arbitration confidentiality provision but not to discharge or discipline an employee for a Sec. 7–protected disclosure of information even if the disclosure violated that provision). Nothing in our decision here or in California Commerce Club takes away the “bread and butter” NLRA rights of “[u]nion organizing and collective bargaining in the workplace,” Epic Systems, 138 S. Ct. at 1627, including employees’ Sec. 7 right to effectively communicate with one another regarding workplace matters of mutual concern. The dissent, in contrast, contends that the FAA and the Act can be harmonized only by invalidating the confiden- tiality provision in the Agreement and in countless other arbitration agreements. We respectfully disagree that this outcome is what the Court had in mind when it instructed that courts, and the Board, are not free to pick and choose between congressional enactments but must in- stead strive “‘to give effect to both.’” Epic Systems, supra at 1624 (quot- ing Morton v. Mancari, 417 U.S. 535, 551 (1974)). 11 The dissent parallels the Murphy Oil majority in other ways as well. Compare dissent, infra at slip op. 17 (“[I]ndividual contract terms pro- spectively waiving employees’ rights to engage in activity protected by Section 7 violate the NLRA and are unenforceable.”) with Murphy Oil, supra at 782 (“[A]ny individual employment contract that purports to ex- tinguish rights guaranteed by Section 7 of the National Labor Relations Act is unlawful.”); dissent, infra at slip op. 20 (“[T]he Supreme Court DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 considered it, and the Supreme Court laid it to rest in Epic Systems. We think the Board should learn from this expe- rience. Instead, the dissent doubles down. In support of her position, our dissenting colleague re- lies on court decisions in which certain arbitral confiden- tiality provisions were invalidated under the FAA saving clause as unconscionable under state contract law.12 Such decisions say nothing about whether confidentiality provi- sions may also be invalidated under Section 2 of the FAA based on a federal statute, including the NLRA. There is a real question whether a federal statute can invalidate an arbitration agreement under the FAA’s saving clause. See Morris v. Ernst & Young, LLP, 834 F.3d 975, 991‒992, 997 (9th Cir. 2016) (Ikuta, J., dissenting) (“[T]he Supreme Court does not apply the savings clause to federal statutes; rather, it considers whether Congress has exercised its cases relied upon by the majority have nothing to say to the specific issue of the enforceability of confidentiality restrictions in this case or any other.”) with Murphy Oil, supra at 788 (“Our dissenting colleague points to no Supreme Court decision that directly answers the question posed in D. R. Horton [regarding the applicability of the FAA to individual arbi- tration agreements].”); and dissent, infra at slip op. 21 (“Simply put, the Norris-LaGuardia Act protects employee speech related to employment arbitration, and it precludes federal courts from silencing employees on employer demand.”) with Murphy Oil, supra at 789 (“If the arbitration agreement violates the policy of the Norris-LaGuardia Act (as we have demonstrated), then it is unenforceable, and employees have no legal duty to comply with it. To the extent that the FAA would suggest other- wise, it would conflict with the Norris-LaGuardia Act—and so cannot survive under Section 15 of that statute.”). But the Supreme Court re- jected Murphy Oil in Epic Systems. For our part, we apply the Supreme Court’s holding in Epic Systems and the analysis the Court there en- dorsed. 12 See Larsen v. Citibank FSB, 871 F.3d 1295 (11th Cir. 2017) (con- fidentiality provision in agreement between bank and account holder re- quiring that arbitrator’s award be kept confidential unconscionable under Washington law); Narayan v. Ritz-Carlton Development Co., 400 P.3d 544 (Haw. 2017) (recognizing that “confidentiality provisions are not per se substantively unconscionable” but finding unconscionable provision prohibiting disclosure of “the facts of the underlying dispute or the con- tents or results of any negotiation, mediation, or arbitration hereunder without prior written consent of all parties” because it was combined with a narrow discovery provision), cert. denied 138 S. Ct. 982 (2018); Schnuerle v. Insight Communications Co., 376 S.W.3d 561 (Ky. 2012) (confidentiality provision in customer and internet service provider agreement prohibiting disclosure of “the existence, content or results of any arbitration or award, except as may be required by law, to confirm and enforce an award, or to the party's attorneys and/or accountants” un- conscionable under Kentucky law); Davis v. O’Melveny & Myers, 485 F.3d 1066 (9th Cir. 2007) (provision in employment arbitration agree- ment requiring that arbitration be confidential and prohibiting disclosure “to any third party or person not directly involved in the mediation or arbitration the content of the pleadings, papers, orders, hearings, trials, or awards in the arbitration, except as may be necessary to enter judg- ment upon the Arbitrator's award as required by applicable law” uncon- scionable under California law); Zuver v. Airtouch Communications, Inc., 103 P.3d 753 (Wash. 2004) (provision requiring that “[a]ll arbitra- tion proceedings, including settlements and awards, under the Agree- ment will be confidential” unconscionable under Washington law). authority to override the FAA’s mandate to enforce arbi- tration agreements according to their terms.”).13 After pointedly citing Judge Ikuta’s Morris v. Ernst & Young dissent, the Supreme Court found it unnecessary to reach this question in Epic Systems because regardless of how it is answered, Section 2 of the FAA cannot “save” an argu- ment that targets fundamental attributes of arbitration, such as its traditionally individualized nature. 138 S. Ct. at 1622‒1623. In light of the Court’s explicit refusal to apply the saving clause to the Act in Epic Systems and the absence of any other precedent for doing so, we do not believe that we are free to do so here. In any event, as explained below and in California Commerce Club, con- fidentiality is a fundamental attribute of arbitration, and we therefore respectfully disagree with any contrary im- plication in the cases on which the dissent relies. Each of these decisions directly or indirectly relied on Ting v. AT&T, 319 F.3d 1126 (9th Cir. 2003), where the Ninth Circuit held that an arbi- tration-confidentiality provision was unconscionable under California law. (Larsen relied on Zuver, which in turn relied on Ting.) But the Ninth Circuit subsequently reversed course in Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1255‒1266 (9th Cir. 2017), where the court rejected the contention that a provision relevantly requiring that “[a]ll aspects of the arbitration, including without limitation, the record of the proceeding, are confidential and shall not be open to the public” was unconscionable. This holding severely erodes the precedent on which the dissent relies. The dissent cites only one case in which a court invalidated a confi- dentiality provision under another federal statute, but the case is readily distinguishable. In Seibert v. Precision Contracting Solutions, LP, the court found that a confidentiality provision in a form contract was void and unenforceable under Sec. 45(b) of the Federal Trade Commission Act (FTCA), which prohibits form contracts that limit consumer reviews related to the provision of goods and services and declares void any agreement containing such a provision. Civil Action No. 18‒818, 2019 WL 935637 at *7‒8 (D.D.C. 2019). The provision in question was ex- ceptionally broad, making both the dispute itself and the results of any arbitration proceeding “confidential with no public comment permitted in any form by either party relating to the dispute.” The court determined that there is no conflict between the FAA and Sec. 45(b) of the FTCA and further held that the agreement was unconscionable and thus unen- forceable based on the clear conflict between its provisions and the FTCA. While the court chose to ground its analysis in unconscionability, the outcome is wholly consistent with our analysis, since the FTCA plainly establishes a “contrary congressional command” within the meaning of the Supreme Court’s FAA jurisprudence. In contrast, and as noted above and in California Commerce Club, the Act does not even mention, much less explicitly prohibit, confidentiality provisions in em- ployment arbitration agreements. 13 The dissent disputes this point, citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967), and Kaiser Steel Corp. v. Mul- lins, 455 U.S. 72 (1982). These cases are inapposite. Kaiser Steel did not involve either arbitration or an agreement to arbitrate, and the Court’s decision does not so much as mention the FAA. In Prima Paint, the issue was “whether the federal court or an arbitrator [was] to resolve a claim of ‘fraud in the inducement,’ under a contract governed by the [FAA].” 388 U.S. at 396‒397. “Fraud in the inducement” is a state contract-law defense. Thus, like the many state-law unconscionability cases the dis- sent relies on and we dispose of in fn. 12 above, Prima Paint sheds no light on whether a federal statute can invalidate an arbitration agreement under the FAA’s saving clause. DISH NETWORK, LLC 7 In arguing otherwise, the dissent spills much ink distin- guishing between arbitration privacy (excluding nonpar- ticipants from the proceeding) and arbitration confidenti- ality (limiting the parties’ ability to disclose “information about the proceedings”), citing in support the American Arbitration Association’s Statement of Ethical Principles. Read in full, however, that statement makes clear that “the AAA takes no position on whether parties should or should not agree to keep the proceeding and award confi- dential between themselves. The parties always have a right to disclose details of the proceeding, unless they have a separate confidentiality agreement. . . . [I]ndividual ar- bitrations are confidential if the parties so determine . . . .”14 Here, of course, the parties do have a confidentiality agreement. Contrary to the AAA’s Statement of Ethical Principles, the dissent gives that fact no real weight. In any event, the dissent errs in her view that the funda- mental attributes of arbitration are limited to those specific provisions that the Supreme Court has previously upheld, such as provisions specifying “the choice of law or appli- cable rules of procedure, the nature of the claims that can be asserted, how the parties will present evidence, or how the arbitrator will conduct the proceeding.” This is not the standard the Supreme Court applies. To the contrary, in the Court’s view, the fundamental attributes of arbitration are its “efficient, streamlined procedures . . . . reducing the cost and increasing the speed of dispute resolution.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344‒ 345 (2011). Another fundamental attribute of arbitration is its “informal nature.” Epic Systems, 138 S. Ct. at 1623; see also Concepcion, supra at 345 (“[T]he informality of arbitral proceedings is itself desirable.”). Prohibiting ar- bitration confidentiality provisions would interfere with these fundamental attributes of arbitration because, absent confidentiality, discovery disputes are more likely, and parties will demand “all of the procedural accoutrements 14 AAA STATEMENT OF ETHICAL PRINCIPLES, https://adr.org/State- mentofEthicalPrinciples (last visited Jan. 26, 2021) (emphasis added). In full, the relevant section of the statement reads as follows: An arbitration proceeding is a private process. In addition, AAA staff and AAA neutrals have an ethical obligation to keep information confidential. However, the AAA takes no position on whether parties should or should not agree to keep the proceeding and award confidential between themselves. The parties always have a right to disclose details of the pro- ceeding, unless they have a separate confidentiality agree- ment. Where public agencies are involved in disputes, these public agencies routinely make the award public. While individual arbitrations are confidential if the parties so determine, the AAA’s rules and procedures are available to the public on its Web site and in hard copy. 15 In arguing that confidentiality provisions cannot be fundamental attributes of arbitration, our colleague contends that employees would have to violate the plain terms of many confidentiality provisions in order that accompany a judicial proceeding.” Iberia Credit Bu- reau, Inc. v. Cingular Wireless LLC, 379 F.3d 159, 175‒ 176 (5th Cir. 2004) (explaining that, because it would in- terfere with the “simplicity, informality, and expedition of arbitration,” an “attack on the confidentiality provision is, in part, an attack on the character of arbitration itself”) (in- ternal quotation marks omitted); see also Guyden v. Aetna, Inc., 544 F.3d 376, 385 (2d Cir. 2008) (confidentiality is a “paradigmatic aspect of arbitration”).15 We also reject the dissent’s contention that arbitration- confidentiality requirements unlawfully restrict Board ac- cess. This argument resembles a similar argument we found without merit in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144, slip op. at 11 (2019). In Apogee, we held that investigative-confidentiality rules are generally lawful under Boeing, rejecting, among other things, the dissent’s assertion that our decision would make it virtually impossible for employees to seek the help of a Board agent about an allegation of misconduct. Id. Stating that nothing in our decision allowed an employer to infringe upon an employee’s right to file a charge with the Board, we explained that the rules at issue did not ex- pressly refer to, much less prohibit, employee discussions with the Board about conduct the employer was investi- gating, and we rejected the notion that a reasonable em- ployee would read them to restrict such discussions, reit- erating that an objectively reasonable employee “‘inter- prets work rules as they apply to the everydayness of his job.’” Id., slip op. at 11 & fn. 21 (quoting LA Specialty, 368 NLRB No. 93, slip op. at 2 (internal quotation marks and citations omitted)). Here, and like the investigative-confidentiality rules at issue in Apogee, the Agreement’s confidentiality provi- sion does not expressly refer to, much less prohibit, em- ployee discussions with a Board agent about anything.16 Moreover, while an employer may lawfully maintain an to access the enforcement mechanisms expressly provided by the FAA. This assertion ignores the obvious, which is that an objectively reasona- ble employee simply would not interpret a confidentiality provision to restrict the right to seek the judicial relief provided by the FAA itself, such as requests to stay judicial action, compel arbitration, or vacate an arbitral award, or requests to confirm, modify or correct an award. More- over, even assuming a particular provision’s terms could reasonably be read to prohibit a party from exercising such rights under the FAA, any such inconsistency with the FAA would not establish a violation of the National Labor Relations Act. The dissent also contends that the Norris-LaGuardia Act (NLGA) pro- hibits courts from enforcing confidentiality provisions through injunc- tions. However, the question of how or when a confidentiality provision can be enforced in court is also not relevant to whether the provision violates the Act. See generally Epic Systems, 138 S. Ct. at 1627 (holding that the NLGA, like the Act, “does not conflict with Congress’s statutory directions favoring arbitration”). 16 As we explained in Apogee, while it may be preferable for an em- ployer to clearly include an exception for Board charges, the absence of DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 arbitration-confidentiality provision, it may not discharge or otherwise discipline an employee for a Section 7–pro- tected disclosure of information even if the disclosure vi- olated the provision. California Commerce Club, 369 NLRB No. 106, slip op. at 6 (citing Cordúa Restaurants, Inc., 368 NLRB No. 43, slip op. at 3 (2019), enfd.___ F.3d ___, 2021 WL 82264 (5th Cir. 2021)). Instead, the em- ployer would be limited to seeking enforcement of the ar- bitration-confidentiality provision, id.—and since em- ployees have a statutorily protected right to access the Board and its processes, seeking such enforcement would be a futile endeavor. We therefore disagree with the dis- sent’s assertion that the Agreement’s confidentiality pro- vision, as it applies to hearings, discovery, and awards, would restrict employees’ right to file charges with the Board.17 Our colleague claims that by refusing to find the confi- dential arbitration proceedings provision unlawful, we seek to “promot[e] employers’ authority to compel arbi- tration of workplace disputes.” In fact, we merely adhere to Supreme Court precedent, including Epic Systems, in which the Court reminds us that it is not ours to decide whether the arbitration of workplace disputes is a good thing or bad thing, worthy of promoting or not. 138 S. Ct. at 1621‒1622 (“You might wonder if the balance Con- gress struck in 1925 between arbitration and litigation should be revisited in light of more contemporary devel- opments. You might even ask if the [FAA] was good pol- icy when enacted. But all the same you might find it dif- ficult to see how to avoid the [FAA]’s application.”). Whether we like the policy or not, and whether our col- league believes our decision will promote the authority of employers to “compel” arbitration, the Supreme Court in Epic Systems makes clear that arbitration agreements are just that: agreements. It is a point the Court insists upon from the very beginning of its decision. See 138 S. Ct. at 1619 (“Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees al- ways be permitted to bring their claims in class or collec- tive actions, no matter what they agreed with their em- ployers?”) (emphasis added). Finally, the dissent expresses the concern that our deci- sions today and in California Commerce Club will prevent employees from telling coworkers, government agencies, and the public about unlawful employer conduct. Putting aside again the potential policy debate about enforcing such an exception does not render the confidentiality provision unlawful. Id., slip op. at 11 fn. 21. 17 We have found that the Agreement’s confidentiality provision is lawful insofar as it applies to hearings, discovery, and awards. By con- trast and as explained above, however, the settlement-confidentiality arbitration agreements as Congress intended, which is not ours to engage in, there should be no ambiguity on this point: we share our colleague’s desire that unlawful be- havior should be ferreted out and not hidden, and nothing in our decision today or in California Commerce Club should be read to suggest the contrary. But while we agree with our colleague about that important point, our sole task here is to determine whether the Agreement’s confi- dential arbitration proceedings provision violates the Act, and in making that determination, we are constrained by the FAA and Supreme Court precedent applying it. Ex- cluding the settlement-confidentiality requirement, that precedent compels us to uphold the Agreement’s confi- dential arbitration proceedings provision. Accordingly, we dismiss the complaint in relevant part. D. Instruction Not to Discuss Suspension The complaint alleges that the Respondent told the Charging Party not to discuss his suspension with his coworkers. In its prior decision, the Board found that this statement violated Section 8(a)(1). As noted above, the parties informed the court that they had reached a resolution of this allegation, and they asked the court to permit them withdraw the petition for review and cross-application for enforcement in relevant part. The court, however, chose to remand this issue to the Board along with the other two issues. Under the circum- stances, we find it appropriate to sever and retain this com- plaint allegation and to issue a notice to show cause why the allegation should not be remanded to the Regional Di- rector for further appropriate action. ORDER The National Labor Relations Board orders that the Re- spondent, Dish Network, LLC, Englewood, Colorado, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining a mandatory arbitration agreement that employees reasonably would believe bars or restricts them from exercising the right to file charges with the National Labor Relations Board. (b) Maintaining a mandatory arbitration agreement that requires settlements of employment-related disputes to re- main confidential. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. requirement violates Sec. 8(a)(1) in part because it prohibits disclosure of all settlements, which would interfere with employees’ right to file Board charges alleging that the terms of particular settlements violate the Act. DISH NETWORK, LLC 9 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind its mandatory arbitration agreement in all its forms, or revise it in all its forms to make clear to em- ployees that it does not bar or restrict employees from ex- ercising their right to file charges with the National Labor Relations Board and does not require settlements of em- ployment-related disputes to remain confidential. (b) Notify all applicants and current and former em- ployees who were required to sign or otherwise became bound to the unlawful mandatory arbitration agreement in any form that it has been rescinded or revised and, if re- vised, provide them a copy of the revised agreement. (c) Post at all its facilities where the unlawful arbitra- tion agreement is or has been in effect copies of the at- tached notice marked “Appendix.”18 Copies of the notice, on forms provided by the Regional Director for Region 27, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. In addition to physical posting of paper no- tices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. The Respondent shall take reasonable steps to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed any facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former em- ployees employed by the Respondent at that facility at any time since October 24, 2013. (d) Within 21 days after service by the Region, file with the Regional Director for Region 27 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. IT IS FURTHER ORDERED that the allegation involving the Respondent's statement to an employee not to discuss his suspension is severed from this case and retained for fu- ture disposition. 18 If facilities where the unlawful arbitration agreement is or has been in effect are open and staffed by a substantial complement of employees, the notice must be posted at those facilities within 14 days after service by the Region. If any facilities where the unlawful arbitration agreement is or has been in effect are closed due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notice must be posted within 14 days after those facilities reopen and a substantial complement of employees have returned to work, and the notice may not be posted until a substantial complement of employees have returned to work. Any delay in the Further, NOTICE IS GIVEN that cause be shown, in writ- ing, filed with the Board in Washington, D.C., on or be- fore April 1, 2021 (with affidavit of service on the parties to this proceeding), why the complaint allegation involv- ing the Respondent’s statement to an employee to not dis- cuss his suspension should not be remanded to the Re- gional Director for Region 27 for further appropriate ac- tion. Any briefs or statements in support of the response shall be filed on the same date. Dated, Washington, D.C. March 18, 2021 ______________________________________ Marvin E. Kaplan, Member ______________________________________ John F. Ring, Member (SEAL) NATIONAL LABOR RELATIONS BOARD CHAIRMAN MCFERRAN, concurring in part and dissenting in part. In the name of promoting employers’ authority to com- pel arbitration of workplace disputes, the Board today dis- regards two core worker rights protected by Section 7 of the National Labor Relations Act. First is employees’ right to bring unfair labor practices to the attention of the National Labor Relations Board. Second is the right of employees to talk among themselves and to others about their jobs—and to seek help in improving them. Despite recognizing the impact of its decision, the majority largely upholds a broad confidentiality provision in a mandatory arbitration agreement, insisting that the Federal Arbitra- tion Act,1 as interpreted by the Supreme Court in Epic Sys- tems,2 requires today’s result. It does not. Employer-imposed confidentiality require- ments that prevent workers from talking to each other, to nonemployees, and to the Board about their employment conditions are not “fundamental attributes of arbitration,” in the words of the Epic Systems Court. But they are anathema to labor law—whether they are imposed in a workplace rule, in an individual contract for employment, physical posting of paper notices also applies to the electronic distribu- tion of the notice if the Respondent customarily communicates with its employees by electronic means. If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 1 9 U.S.C. §§ 1‒16. 2 Epic Systems Corp. v. Lewis, 584 U.S. ___, 138 S. Ct. 1612 (2018). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 or in an arbitration agreement. Harmonizing the National Labor Relations Act and the Federal Arbitration Act should be easy in this case. Instead, the majority unnecessarily sacrifices the statute that Congress has charged us with administering and the workers that we should protect. Rather than striking down broad arbitration-confidentiality provisions—in line with its acknowledgment today that “individual agreements be- tween employer and employee prospectively waiving Sec- tion 7 rights violate the” National Labor Relations Act3— the majority now apparently contemplates that federal courts will enforce broad confidentiality provisions and actually enjoin workers from engaging in protected con- certed activity. Both the NLRA and the Norris-LaGuardia Act, which remains federal law after 88 years, clearly pro- hibit that result.4 Today’s decision is part of an alarming trend reflected in the Board’s recent decisions and elsewhere. More and more, employees are being forced to suffer in silence at work, barred from telling co-workers, government agen- cies, and the public about abusive, unfair, and unlawful employer conduct. A string of recent Board decisions have made it easier for employers to maintain and enforce confidentiality rules against employees, even when the rules deter activity protected by Section 7 of the Act.5 These decisions effectively command workers, as the song goes, to: “talk less, smile more.”6 Such a message has as little place in the give and take of labor relations as in any other aspect of American public life. 3 The majority correctly cites an 80-year-old Supreme Court decision, National Licorice Co. v. NLRB, 309 U.S. 350 (1940). 4 29 U.S.C. §§101‒115. The Norris-LaGuardia Act deprives federal courts of jurisdiction to issue injunctive relief “in any case involving or growing out of any labor dispute to prohibit any person or persons par- ticipating or interested in such dispute . . . from . . . [g]iving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence.” 29 U.S.C. §104 (emphasis added). See Marine Cooks & Stewards, AFL v. Panama Steamship Co., 362 U.S. 365, 372 (1960) (“Congress passed the Norris-LaGuardia Act to curtail and regulate the jurisdiction of the courts, not, as it passed the Taft-Hartley Act, to regu- late the conduct of people engaged in labor disputes”); New Negro Alli- ance v. Sanitary Grocery Co., 303 U.S. 552, 562‒563 (1938) (“It was intended that . . . those having a direct or indirect interest in . . . terms and conditions of employment should be at liberty to advertise and dis- seminate facts and information”). 5 See, e.g., Baylor University Medical Center, 369 NLRB No. 43 (2020) (overruling precedent to condone employer’s offer of separation agreements with broad confidentiality and non-assistance terms); Bemis Co., 370 NLRB No. 7 (2020) (approving rule requiring employee com- munications to “safeguard the reputation and interests” of the employer); Motor City Pawn Brokers, Inc., 369 NLRB No. 132 (2020) (approving rule prohibiting employee communications which might, inter alia, un- intentionally embarrass the employer); Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019) (approving broad restrictions on The majority’s conclusion here also creates tensions in the law that are difficult to reconcile, both with prior Board decisions and even internally within its own deci- sion today. In Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10 (2019), which relied on Section 10(a) of the National Labor Relations Act,7 we unanimously re- affirmed that mandatory arbitration provisions restricting access to the Board are unlawful. The majority applies the Prime Healthcare principle to invalidate one provision in the arbitration agreement challenged in this case,8 and I concur in this holding. But the majority fails to grasp that the confidentiality provision it upholds also unlawfully re- stricts Board access.9 Similarly, while the majority cor- rectly holds that the confidentiality provision is unlawful insofar as it covers settlements of work-related disputes (I concur in that holding), my colleagues err in not recogniz- ing that the entire confidentiality provision should be struck down. Rather, the majority follows California Commerce Club, Inc., 369 NLRB No. 106 (2020), a recent decision that gave employers broad license to impose ar- bitration confidentiality on workers. As I will explain, California Commerce Club was wrongly decided because it misinterpreted the FAA to conflict with and displace the clear commands of the NLRA.10 I. As a unanimous Board recently explained in Prime Healthcare, above, Section 10(b) of the Act conditions the Board’s authority to remedy unfair labor practices in the public interest upon individuals’ filing of unfair labor discussion of employer internal investigations). For a discussion of the rise of workplace confidentiality requirements generally, see Jane Flana- gan & Terri Gerstein, “Sign on the Dotted Line”: How Coercive Em- ployment Contracts Are Bringing Back the Lochner Era and What We Can Do About It, 54 U.S.F. L. REV. 441, 452‒455 (2020). 6 MIRANDA, L., Aaron Burr, Sir, on HAMILTON: AN AMERICAN MUSICAL (Atlantic Records, 2015). 7 Sec. 10(a) of the Act authorizes the Board to prevent unfair labor practices and provides that its power to do so “shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise.” 29 U.S.C. § 160(a). 8 The invalidated provision requires that employees arbitrate “any claim, controversy and/or dispute between them, arising out of and/or in any way related to Employee’s application for employment, employment and/or termination of employment, whenever and wherever brought.” 9 The confidentiality provision recites that “all arbitration proceed- ings, including but not limited to hearings, discovery, settlements, and awards shall be confidential.” 10 Of course, the Board’s interpretation of the FAA, unlike its inter- pretation of the NLRA, is not entitled to judicial deference. See, e.g., Epic Systems, above, 138 S. Ct. at 1629‒1630. As discussed below, ju- dicial interpretations of the FAA contradict the majority’s construction of that statute in California Commerce Club. I was not a member of the Board when California Commerce Club was decided; otherwise, I would have dissented. (My prior Board term ended on December 16, 2019, and my current term began on August 10, 2020.) DISH NETWORK, LLC 11 practice charges.11 Accordingly, the Supreme Court has long recognized Congress’s intent that employees be “completely free to file charges with the Board, to partic- ipate in Board investigations, and to testify at Board hear- ings.”12 Thus, Section 10(a) commands that the Board’s power to prevent unfair labor practices “shall not be af- fected by any other means of adjustment or prevention that has been or may be established by agreement, law, or oth- erwise.”13 Because arbitration-exclusivity provisions that interfere with employees’ free access to the Board ham- string the Board’s performance of its statutory duties, Prime Healthcare reaffirmed longstanding, court-ap- proved Board precedent holding that such provisions are unlawful.14 And we explained that the Supreme Court’s decision in Epic Systems Corp. did not disturb this prece- dent because Section 10(a) is a clear congressional com- mand precluding enforcement of private agreements that restrict employees’ ability to invoke the Board’s pro- cesses.15 The majority inexplicably fails to recognize that the same principles must govern when an arbitration-con- fidentiality provision, rather than an arbitration-exclusiv- ity provision, interferes with employee access to the Board. The confidentiality provision challenged here clearly does interfere with Board access. The arbitration agree- ment requires mandatory arbitration of “any claim, con- troversy and/or dispute between [employees and the Re- spondent], arising out of and/or in any way related to Em- ployee’s application for employment, employment, and/or termination of employment, whenever and wherever brought.” It further provides that “all arbitration proceed- ings, including but not limited to hearings, discovery, set- tlements, and awards shall be confidential.” This very 11 368 NLRB No. 10, slip op. at 5. 12 Id. (citing NLRB v. Scrivener, 405 U.S. 117, 121‒122 (1972)). 13 29 U.S.C. § 160(a) (emphasis added). 14 See, e.g., U-Haul Co. of California, 347 NLRB 375, 377 (2006), enfd. 255 Fed. Appx. 527 (D.C. Cir. 2007); Murphy Oil USA, Inc., 361 NLRB 774, 791 fn. 98, 794 (2014), enfd. in relevant part 808 F.3d 1013, 1019, 1021 (5th Cir. 2015), revd. on other grounds 138 S. Ct. 1612 (2018). 15 See, e.g., Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013, 1019 (5th Cir. 2015) (“‘Wherever private contracts conflict with [the Board’s] functions, they . . . must yield or the [NLRA] would be reduced to a futility.’”) (quoting J.I. Case Co. v. NLRB, 321 U.S. 332, 337 (1944)), enfg. in relevant part 361 NLRB 774 (2014). 16 Johnnie’s Poultry Co., 146 NLRB 770, 774‒775 (1964), enf. de- nied 344 F.2d 617 (8th Cir. 1965); see also Beverly Health & Rehabili- tation Services, Inc. v. NLRB, 297 F.3d 468, 477‒478 (6th Cir. 2002) (noting that courts that have not adopted Board’s specific framework for evaluating questioning in preparation for litigation “have not disagreed with the basic premise that cooperation in such investigations must al- ways be voluntary”). 17 It is far from unusual for litigation of one unfair labor practice charge to bring to light separate, previously uncharged, unlawful con- duct. See, e.g., Rhode Island PBS Foundation, 368 NLRB No. 29, slip broad confidentiality restriction—which has no explicit or even implicit exceptions—would interfere with an em- ployee’s Section 7 right of access to the Board if she learned through an arbitration proceeding that her em- ployer had engaged in conduct that might constitute an un- fair labor practice and sought to act on that knowledge. The provision plainly restricts her ability to consult with an attorney or with a Board agent, to file a Board charge, or to provide information in response to a Board investi- gation, based on information learned in arbitration. It is easy to see how this broad prohibition against dis- closing information about an arbitration proceeding might be triggered to interfere with Board access. An employer could violate Section 8(a)(1) of the Act by coercively questioning potential employee witnesses in preparation for litigation.16 Coercive interrogation during arbitral dis- covery or hearing testimony could likewise violate the Act. Moreover, an employee might learn during arbitra- tion proceedings of other unfair labor practices, either re- lated to or unrelated to the matter at issue in the proceed- ing.17 Indeed, the employer might commit an unfair labor practice during the proceeding, such as by directing the party-employee not to discuss with others the factual is- sues underlying the arbitration.18 In all of these circum- stances—and these are just a few of the most obvious ex- amples—employees would clearly violate the challenged confidentiality provision by sharing arbitration-acquired information with the Board. My colleagues claim that the provision at issue here does not restrict access to the Board because, they con- tend, there is “a fundamental difference” between provi- sions requiring arbitration confidentiality and the arbitra- tion-exclusivity provisions found unlawful today and in op. at 10‒11 (2019) (employer’s defense of Sec. 8(a)(5) allegation estab- lished separate violations of Sec. 8(a)(1)). 18 Under today’s decision and California Commerce Club, an em- ployer cannot lawfully prohibit an employee from discussing, with other employees, work-related issues and information that the employee “pos- sesses independent of the arbitral proceeding.” 369 NLRB No. 106, slip op. at 4. Of course, employees likely will have difficulty understanding what they can and cannot discuss under an arbitration-confidentiality provision, a compelling reason to find broad provisions unlawful. As the Board has recently reiterated in a related context, “rank-and-file employ- ees do not generally carry law books” and neither they nor their employ- ers can be expected always to correctly ascertain and communicate the precise limits of a broadly-worded confidentiality requirement. See Hoot Winc, LLC, 369 NLRB No. 69, slip op. at 3 (2020). An employer who implicitly or explicitly threatened to enforce an arbitration-confidential- ity provision to restrict protected discussion of information—infor- mation known independently of the arbitration proceeding—would cer- tainly violate the Act. Cf. UniQue Personnel Consultants, Inc., 364 NLRB No. 112, slip op. at 1, fn. 4 (2016) (employer’s threat of legal prosecution for discussion of terms and conditions of employment vio- lated the Act). But if such a threat were made during the arbitration pro- ceeding itself, an objectively reasonable employee would understand the confidentiality provisions to prevent her from revealing it to the Board. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 Prime Healthcare, above. But they fail to explain con- vincingly where this purported difference lies. Instead, they argue (1) that their position today is consistent with their position in Apogee Retail, above; (2) that the confi- dentiality provision at issue does not expressly prohibit protected employee disclosures to a Board agent; and (3) that an employer could not, in any case lawfully enforce the confidentiality provision to prevent employees from going to the Board. These arguments are unpersuasive. First, consistency with Apogee is no virtue, because that decision was itself fundamentally flawed, as I explained in my dissent there.19 Second, it is irrelevant that the pro- vision does not expressly prohibit disclosures to counsel or to a Board agent, because a rule generally prohibiting disclosure to anyone clearly encompasses such specific disclosures. The majority, rightly, has had no trouble ap- plying this principle to arbitration-exclusivity provisions, which also have not expressly prohibited, or even referred to, recourse to Board processes. Rather, in that context, the majority correctly reasons that a provision requiring arbitration of all covered claims prohibits recourse to the Board for resolution of specific claims. But by the same reasoning, a provision restricting all disclosure of arbitra- tion-related information, without exceptions, necessarily restricts specific disclosure of such information to counsel or to a Board agent in order to seek the Board’s help. Fi- nally, while the majority correctly recognizes that enforce- ment of the confidentiality provision against protected conduct would violate the Act, this in no way undermines the conclusion that the mere maintenance of the provision also unlawfully restrains access to the Board even if it is never invoked; indeed, the more effective the provision’s unlawful prior restraint, the fewer occasions would ever arise for its unlawful enforcement. Thus, the Board and the courts have long recognized that “[b]ecause of the likely chilling effect of [a rule prohibiting employee state- ments about working conditions], the Board may conclude that [such a rule is] an unfair labor practice even absent evidence of enforcement.” NLRB v. Vanguard Tours, Inc., 981 F.2d 62, 66‒67 (2d Cir. 1992) (citing Republic 19 Apogee Retail, above, 368 NLRB No. 144, slip op. at 17‒18 (dis- sent). As in Apogee, my colleagues fail to recognize the obvious poten- tial that reasonable employees will understand employer-imposed confi- dentiality requirements to prohibit them from bringing charges to the Board. Like Apogee Retail, today’s decision cannot be reconciled with Prime Healthcare. 20 See also NLRB v. Long Island Assn. for AIDS Care, Inc., 696 Fed. Appx. 556, 557 (2d Cir. 2017), enfg. 364 NLRB No. 28 (2016); Double Eagle Hotel & Casino v. NLRB, 414 F.3d 1249, 1258‒1259 (10th Cir. 2005), enfg. 341 NLRB 112 (2004), cert. denied 546 U.S. 1170 (2006); NLRB v. Main Street Terrace Care Center, 218 F.3d 531, 539 (6th Cir. 2000), enfg. 327 NLRB 522 (1999); Medeco Security Locks, Inc. v. Aviation Corp. v. NLRB, 324 U.S. 793, 803 fn. 10 (1945)), enfg. in relevant part 300 NLRB 250 (1990).20 In sum, there can be no real question that the confiden- tiality provision here interferes with the right of employ- ees to seek the Board’s help, a result plainly contrary to Board law and to Congress’s intent, as reflected in Section 10(a) of the Act, to vigorously protect access to the Board. This is enough to invalidate the confidentiality provision in its entirety. II. The provision also has a second fatal flaw. In addition to interfering with employees’ access to the Board, the challenged confidentiality provision also interferes with employees’ core Section 7 right to discuss terms and con- ditions of employment with their co-workers. The major- ity recognizes as much in concluding that the provision is unlawful insofar as it requires confidentiality of arbitra- tion “settlements.” In fact, the remaining terms of the con- fidentiality provision also squarely violate the Act. Con- trary to the majority, the remaining confidentiality re- quirements that it upholds—extending to “all arbitration proceedings, including but not limited to hearings, discov- ery, . . . and awards”—are not shielded by the Federal Ar- bitration Act from being found unlawful under the NLRA, as they otherwise would be. The Board decision followed by the majority, California Commerce Club, is simply in- correct in permitting employers to impose such confiden- tiality requirements.21 A. As the Board acknowledged in California Commerce Club, a provision requiring that arbitration proceedings be kept confidential undeniably restrains employees from ex- ercising their Section 7 right to communicate with coworkers about job-related information they learn in the course of the proceeding, whether through discovery, a hearing, or otherwise.22 And, as the California Commerce Club Board recognized, “[i]t is axiomatic that discussing terms and conditions of employment with coworkers lies at the heart of protected Section 7 activity.”23 There should be no dispute, then, about the consequences of NLRB, 142 F.3d 733, 745‒746 (4th Cir. 1998), enfg. 322 NLRB 664 (1996); Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). 21 As explained below, the majority’s repeated claims that the Su- preme Court has already decided this issue in Epic Systems, above, miss the mark: confidentiality requirements are not the same thing as class or collective action waivers. 22 369 NLRB No. 106, slip op. at 4. 23 Id. slip op. at 1 (emphasis added) (quoting St. Margaret Mercy Healthcare Centers, 350 NLRB 203, 205 (2007), enfd. 519 F.3d 373 (7th Cir. 2008)). DISH NETWORK, LLC 13 upholding the mandatory-arbitration confidentiality pro- visions in this case: employers will be free to prohibit con- duct lying “at the heart of” the National Labor Relations Act’s protections.24 Indeed, the majority apparently envi- sions that, despite the Norris-LaGuardia Act, federal courts will enforce arbitration-confidentiality provisions even in those circumstances. The harmful impact of an arbitration-confidentiality provision on the ability of workers to communicate with each other—and then to take action together—is clear. Employment-related disputes subject to arbitration neces- sarily involve terms and conditions of employment. To take one example, employment arbitration frequently ad- dresses discipline or discharge claimed to unlawfully dis- criminate against legally protected characteristics or con- duct.25 In such cases, evidence of how the employer has treated similarly situated employees—if such evidence ex- ists—plays a crucial role, and would certainly be produced at an arbitration hearing.26 Under well-established law, an employee who learned that her employer had systemati- cally treated similarly-situated employees differently, based on a protected characteristic, would be protected by the Act if she then discussed that information with coworkers for the purpose of supporting potential discrim- ination claims, even where an employer could lawfully compel individual arbitration of all such claims.27 24 This was emphatically not the case in Epic Systems, supra, under the Supreme Court’s interpretation of the NLRA, because the Court did not regard employees’ efforts to pursue class or collective litigation or arbitration as implicating a core Sec. 7 right. 138 S. Ct. at 1624‒1629. Again, this basic difference between the issues in Epic Systems and in this case explains why the majority errs in claiming that Epic Systems is controlling. 25 See, e.g., Thomas v. Cintas Corp., 2020 WL 6127875 (Nev. Dist. 2020) (Herf, Arb.) (awarding damages for racially discriminatory dis- charge); Cantu v. Brock Group, Inc., 2016 WL 7488040 (Tex. Dist. 2016) (Willcuts, Arb.) (finding unlawful discharge in retaliation for fil- ing workers compensation claim); McCauley v. Highland Nursing & Re- habilitation Center, LLC, 2008 WL 8139340 (W.D. Mo. 2008) (Phillips, Arb.) (finding unlawful sexual harassment, hostile work environment, and retaliatory discharge). 26 In Thomas, above, for example, the employer claimed that it had lawfully discharged an employee for violating a company policy, not be- cause of her race. The arbitrator discounted this defense based in part on evidence produced at the hearing that non-African American employees who had violated the same policy had not been discharged. 27 See, e.g., Cordúa Restaurants, Inc., above, 368 NLRB No. 43, slip op. at 4 (citing longstanding Board and court precedent protecting em- ployees’ discussion of terms and conditions of employment in support of concerted pursuit of legal claims), affd. 985 F.3d 415 (5th Cir. 2021). 28 See, e.g., Ralph v. Hosseini, 2020 WL 6451959 (S.D. Cal. 2020) (Berger, Arb.) (finding pizza restaurant’s formula for calculating busi- ness expenses unlawfully systematically undercompensated delivery driver for use of personal vehicle); Ramirez v. Lutheran Church of the Good Sheppard, 2011 WL 1465393 (Cal. Super. 2011) (Marcus, Arb.) (finding ministerial exception did not excuse parochial school from pay- ing overtime to teacher with primarily secular duties). Similarly, employment arbitration frequently addresses issues involving wages and compensation.28 An employee who won a higher wage rate through arbitration would be required to keep the award confidential, preventing her from discussing her own wage rate with other employees, a clear violation of the Act.29 More generally, an em- ployee who learned during an arbitration proceeding that an employer had systematically underpaid employees would be engaging in protected conduct by taking collec- tive action with other employees to address the problem.30 Even where a mandatory arbitration agreement precludes class or collective legal action under Epic Systems, Sec- tion 7 still protects employees’ right to address group con- cerns about terms and conditions of employment by con- certed protest, strike, or collective bargaining.31 Indeed, the prevalence of employer-imposed class ac- tion waivers means that employees’ attempts to improve workplace conditions by concerted protest or by pursuing collective bargaining—conduct that has been uniformly recognized as protected from the Act’s earliest days32— may be one of the few avenues left for collective action. And restraining employees’ ability to talk with each other clearly infringes upon those rights in violation of the Na- tional Labor Relations Act. The Norris-LaGuardia Act, in turn, complements the NLRA’s protection in this respect by providing that federal courts shall have no jurisdiction 29 See, e.g., Lowe’s Home Centers, LLC, 368 NLRB No. 133, slip op. at 1 fn. 1 (2019) (rules proscribing employees’ discussion or disclosure of their own salaries are categorically unlawful). 30 See, e.g., NLRB v. Main Street Terrace Care Center, 218 F.3d 531, 537 (6th Cir. 2000) (“A rule prohibiting employees from communicating with one another regarding wages, a key objective of organizational ac- tivity, undoubtably tends to interfere with the employees’ right to engage in protected concerted activity”), enfg. 327 NLRB 522 (1999); Wilson Trophy Co. v. NLRB, 989 F.2d 1502, 1510 (8th Cir. 1993) (“an unquali- fied rule barring wage discussions among employees without limitations as to time or place is presumptively invalid under the Act”), enfg. 307 NLRB 509 (1992). 31 See Epic Systems, above, 138 S. Ct. at 1625 (concerted activities protected by the Act include “things employees ‘just do’ for themselves in the course of exercising their right to free association in the work- place”). The NLRA protects such conduct from direct employer inter- ference. 32 See, e.g., NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962) (concerted walkout to protest working conditions protected); Eastex, Inc. v. NLRB, 437 U.S. 556, 565‒566 (1978) (Sec. 7 “mutual aid or protec- tion” encompasses employees’ attempts “to improve terms and condi- tions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship,” in- cluding by appeals to administrative, judicial, and legislative bodies); NLRB v. City Disposal Systems Inc., 465 U.S. 822, 831‒832 (1984) (the process giving rise to a collective-bargaining agreement—“beginning with the organization of a union, continuing into the negotiation of a col- lective-bargaining agreement, and extending through the enforcement of the agreement—is a single, collective activity”). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 to issue restraining orders or injunctions prohibiting any person from, inter alia, “[g]iving publicity to the existence of, or the facts involved in, any labor dispute”—whether or not they are the subject of an arbitration proceeding or learned through the proceeding.33 As the Supreme Court has observed, when Congress passed the Norris-LaGuar- dia Act, “[i]t was intended that . . . those having a direct or indirect interest in . . . terms and conditions of employ- ment should be at liberty to advertise and disseminate facts and information.”34 B. While acknowledging (if understating) the obvious im- pact of arbitration-confidentiality provisions on Section 7 rights, the California Commerce Club Board held, in ef- fect, that the Federal Arbitration Act trumped the National Labor Relations Act. That holding was mistaken. The Supreme Court’s decision in Epic Systems, as well as other judicial authority, actually supports the opposite conclu- sion: that invalidating arbitration-confidentiality provi- sions, because of their demonstrable impact on Section 7 rights, is the proper accommodation between the NLRA and the FAA.35 That accommodation preserves a core right protected by the NLRA without diminishing any “fundamental attribute” of arbitration. Where a manda- tory arbitration agreement imposes confidentiality re- quirements on employees that would prevent them from communicating with coworkers and others about terms and conditions of employment, those provisions should be held invalid, though in all other respects an arbitration agreement will survive, and arbitration may proceed. 1. A careful reading of the Supreme Court’s decision in Epic Systems makes clear that the NLRA is not somehow always required to yield to the FAA and that employers are not free to broadly constrain core labor-law rights simply by including restrictions in mandatory arbitration agreements. Rather, the Epic Systems Court explained, “[w]hen confronted with two Acts of Congress allegedly touching on the same topic, [courts] must . . . strive to give effect to both,” and “[a] party seeking to suggest that two statutes cannot be harmonized, and that one displaces the 33 29 U.S.C. § 104(e). 34 New Negro Alliance, supra, 303 U.S. at 562‒563. 35 The majority contends that no such accommodation is possible con- sistent with Epic Systems and that the FAA must therefore displace the NLRA. But, as noted above and explained further below, the majority’s contention is simply mistaken because, simply put, an arbitration-confi- dentiality requirement is not the same thing as a class or collective action waiver. 36 138 S. Ct. at 1624 (internal quotations and citations omitted). 37 Id. at 1622. other, bears the heavy burden of showing a clearly ex- pressed congressional intention that such a result should follow.”36 In analyzing the claim in Epic Systems that the NLRA prohibited mandatory class and collective action waivers in arbitration agreements, the Court found that “by attacking (only) the individualized nature of the arbi- tration proceedings, the employees’ argument seeks to in- terfere with one of arbitration’s fundamental attributes.”37 On the other hand, the Court found little evidence that Congress had intended Section 7 to address class or col- lective procedures. Id. at 1624‒1630. Here, the shoe is on the other foot. As the Epic Systems Court put it, “[u]nion organizing and collective bargaining in the workplace are the bread and butter of the NLRA.” Id. at 1627. And the Supreme Court has long held that employees’ Section 7 right “to self-organize and bargain collectively . . . necessarily en- compasses the right effectively to communicate with one another.”38 Invalidating broad arbitration-confidentiality requirements that contravene Section 7 guarantees would not interfere with any fundamental attribute of arbitration. The majority is simply wrong in concluding that the NLRA and the FAA cannot be harmonized.39 2. Party confidentiality, unlike the bilateralism at issue in Epic Systems, is not a “fundamental attribute” of arbitra- tion. As discussed below, arbitration has historically been private (proceedings are neither open to the public nor a matter of public record), but not confidential, in the sense that parties are constrained in their own discussion or dis- closure of information about the proceedings and award. Nothing in the Federal Arbitration Act (1) imposes a con- fidentiality obligation on parties to an arbitration agree- ment; (2) implies that any aspect of an arbitration proceed- ing—much less information learned in course of such a proceeding—is inherently confidential; or (3) requires a federal court to enforce a broad confidentiality provision, especially where doing so conflicts directly with another federal statute. Because broad confidentiality restrictions on employees’ speech about their workplace violate the NLRA whether imposed by contract or rule, invalidating such restrictions when they appear in employer-imposed 38 Beth Israel Hospital v. NLRB, 437 U.S. 483, 491‒492 & fn. 9 (1978) (citing Central Hardware Co. v. NLRB, 407 U.S. 539, 542‒543 (1972) (“organization rights are not viable in a vacuum . . . . [e]arly in the history of the administration of the Act the Board recognized the im- portance of freedom of communication to the free exercise of organiza- tion rights.”). 39 The majority claims to have harmonized the FAA and the Act “to the extent it is possible to do so,” but the conclusion that the FAA re- quires the enforcement of contract terms that clearly violate the Act amounts to the conclusion that the two statutes cannot be harmonized and that the FAA must, in relevant part, displace the NLRA. DISH NETWORK, LLC 15 arbitration agreements is entirely consistent with judicial interpretations of the FAA’s provision that arbitration agreements may be held unenforceable “upon such grounds as exist at law or in equity for the revocation of any contract.”40 Scholars of arbitration have drawn a distinction between arbitration privacy and arbitration confidentiality.41 Thus, arbitration proceedings in the United States have histori- cally been private, in the sense that non-participants, in- cluding government officials and the press, are excluded from the proceedings.42 They have also been private in the sense that arbitration awards generally are not pub- lished and do not produce precedential “public law.”43 However, absent a separate agreement between the parties or order by an arbitrator, arbitration proceedings have not historically been confidential; rather, parties have gener- ally been free to disclose information about such proceed- ings, including non-public information revealed in the proceeding and details of any arbitral award.44 This his- torical distinction is reflected in the Statement of Ethical Principles of the American Arbitration Association (AAA), which provides that, while arbitration proceedings are “private,” the default rule on confidentiality is that “parties always have a right to disclose details of the pro- ceeding.”45 Thus, severing overly-broad confidentiality requirements from arbitration agreements would neither prevent arbitration nor substantially change the nature of the proceeding.46 40 9 U.S.C. § 2. The Court in Epic Systems expressly declined to reach the question of whether illegality under the NLRA could preclude enforcement of arbitration-agreement provisions other than class and collective action waivers, because the Court found that Sec. 2 of the FAA did not encompass challenges to arbitration’s fundamentally bilateral character. 138 S. Ct. at 1622. 41 See, e.g., Christopher R. Drahozal, Confidentiality in Consumer and Employment Arbitration, 7 Y.B. ON ARB. & MEDIATION 28 (2015) (arguing that critics who claim arbitration permits parties to conceal wrongdoing systematically overstate extent to which arbitration is inher- ently confidential); Amy J. Schmitz, Untangling the Privacy Paradox in Arbitration, 54 U. KAN. L. REV. 1211 (2006) (discussing benefits and drawbacks of privacy and confidentiality in arbitration and proposing both increased protection of some kinds of information and increased transparency of some arbitration proceedings). 42 Schmitz, supra fn. 41, at 1214‒1215. 43 Id. at 1216. 44 Id. at 1218; Drahozal, supra fn. 41 at 36, 37‒41 (“Because an arbi- tration clause does not include an implied obligation of confidentiality under U.S. law, any confidentiality obligation must come from either ad- ministrator rules or the parties’ agreement”). 45 The provision reads in full: Confidentiality An arbitration proceeding is a private process. In addition, AAA staff and AAA neutrals have an ethical obligation to keep information confidential. However, the AAA takes no position on whether parties should or should not agree to keep the proceeding and award confidential between themselves. The parties always have a right to disclose details of the Parties’ historical freedom to disclose information about arbitration proceedings is consistent with the FAA, which nowhere imposes or even contemplates party con- fidentiality. To the contrary several sections of the FAA expressly provide for public filings that would violate the plain language of many broad confidentiality agreements, including the one in this case. Thus, “arbitral proceed- ings” covered by the confidentiality restriction in this case would clearly encompass the formal demand for arbitra- tion that initiates such proceedings. But a party seeking to stay judicial action or to compel arbitration under Section 3 or 4 of the FAA must necessarily disclose the existence and content of such a demand. 9 U.S.C. §§ 3, 4. Similarly, a party seeking to vacate an arbitral award under Section 10 of the FAA—on grounds of corruption in its procure- ment, partiality or misconduct of the arbitrators, or that the arbitrators exceeded their powers—must necessarily dis- close at least the award itself and also likely details of pro- ceedings, including the hearing, that would be covered by the confidentiality requirement. 9 U.S.C. § 10. Finally, Section 13 of the FAA requires a party seeking to confirm, modify, or correct an award to file with the court, among other things, a copy of the award itself. 9 U.S.C. § 13. In each of these cases, absent a separate protective order by the court, filings with the court that facially violate broad confidentiality agreements become a matter of public rec- ord.47 Given that accessing enforcement mechanisms ex- pressly provided by the FAA itself would require violating proceeding, unless they have a separate confidentiality agree- ment. Where public agencies are involved in disputes, these public agencies routinely make the award public. While individual arbitrations are confidential if the parties so determine, the AAA’s rules and procedures are available to the public on its Web site and in hard copy. AAA STATEMENT OF ETHICAL PRINCIPLES, https://adr.org/State- mentofEthicalPrinciples (last visited Nov. 12, 2020) (emphasis added). It is fair to say, consistent with the obligation of AAA staff and neutrals to keep information confidential, that if confidentiality is a “fundamental attribute” of arbitration, it is so only in the limited sense that arbitrators are normally bound by ethical obligations not to disclose information about the proceedings. This obligation, however—like the ordinary at- torney-client confidentiality obligation—is asymmetrical: like the client, the parties to an arbitration are ordinarily free to discuss their own affairs. 46 Cf., e.g., Larsen v. Citibank FSB, 871 F.3d 1295, 1320, 1321 (11th Cir. 2017) (compelling arbitration without severed unlawful confidenti- ality clause). 47 One scholar reports: “Under the FAA, most courts have refused to allow filing of the award under seal, even when the parties have entered into a separate confidentiality agreement covering the arbitration. At a minimum, then, when a party seeks to have a court confirm or enforce an arbitration award, the award on which it relies likely will be made public.” Drahozal, supra, fn. 41 at 32‒33 & fns. 13‒15. See also Laurie Kratke Doré, Public Courts Versus Private Justice: It’s Time to Let Some Sun Shine in on Alternative Dispute Resolution, 81 CHI.-KENT L. REV. 463, 508‒509 & fn. 246 (2006) (“confidentiality agreements in arbitra- tion will not warrant sealing the entire judicial record of a proceeding to vacate or confirm an arbitral award and, absent compelling DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 the plain terms of many broad confidentiality agreements, it makes no sense to claim that the FAA actually mandates enforcing such terms as written.48 In any case, to whatever extent parties may be bound to keep information about arbitration proceedings confiden- tial, that obligation arises from their contract.49 But even where an arbitration agreement includes a term mandating confidentiality, there are clear legal limits to enforceabil- ity. Thus, Section 2 of the FAA requires enforcement of arbitration agreements as written “save upon such grounds as exist at law or in equity for the revocation of any con- tract.” 9 U.S.C. § 2. The Supreme Court has instructed that “the [saving] clause establishes a sort of ‘equal- circumstances, should not justify sealing the court docket or the court’s own decisions or orders”). Westlaw currently provides access to more than 100,000 public court-filed arbitration awards, including the awards discussed above in section II.A. 48 The majority protests that “an objectively reasonable employee simply would not interpret a confidentiality provision” that prohibited all arbitration-related disclosures, without exception, to prohibit specific disclosures permitted by the FAA. See supra, slip op. at 7 fn. 15. This assertion is as unpersuasive as the majority’s similar claim that employ- ees would also naturally divine that blanket prohibitions on all arbitra- tion-related disclosures tacitly exclude NLRA-protected disclosures to counsel or Board agents. In any case, the majority’s argument misses the broader point. A confidentiality provision that is facially inconsistent with the FAA cannot reflect a fundamental attribute of arbitration as con- templated by Congress in enacting the FAA. The majority’s further ob- servation that inconsistency with the FAA (or the Norris-LaGuardia Act) does not establish a violation of the NLRA is similarly beside the point. 49 See generally Drahozal, supra, fn. 41; Schmitz, supra, fn. 41. See also AAA STATEMENT OF ETHICAL PRINCIPLES, supra, fn. 45 (“the AAA takes no position on whether parties should or should not agree to keep the proceeding and award confidential between themselves”). My col- leagues make much of the AAA’s recognition that parties sometimes contract to keep aspects of their arbitration procedures confidential. But this does not change the background rule, as recognized by the AAA, that parties themselves are normally free to discuss their own affairs. Cf. Epic Systems, above, 138 S. Ct. at 1623 (finding that availability of class- wide arbitration procedures did not change traditional individual charac- ter of arbitration). 50 Epic Systems, above, 138 S. Ct. at 1622 (internal quotations, mod- ifications, and citations omitted). 51 Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 fn. 12 (1967) (emphasis added). 52 Because the FAA creates a body of federal substantive law of ar- bitrability that is enforceable in both state and federal courts, and because “grounds . . . for the revocation of any contract” under FAA Sec. 2 fre- quently arise from state law, controlling judicial interpretations of the scope of the FAA saving clause appear in both federal and state court decisions. Perry v. Thomas, 482 U.S. 483, 489 (1987); see also, e.g., Iberia Credit Bureau, Inc. v. Cingular Wireless LLC, 379 F.3d 159, 167‒ 171 (5th Cir. 2004) (invalidating arbitration agreement under Louisiana state court decisions). The majority protests that judicial decisions in- validating confidentiality provisions in arbitration agreements on state law grounds do not establish the availability of an illegality defense un- der a federal statute, a question the Court declined to reach in Epic Sys- tems. While true, this is beside the point that these decisions illustrate: the Epic Court did not reach the question of FAA Sec. 2’s applicability to a federal illegality defense because the Court found that no Sec. 2 de- fense was available for any challenge to individual-arbitration treatment’ rule for arbitration contracts,” but “offers no refuge for . . . defenses that target arbitration either by name or by more subtle methods, such as by interfering with fundamental attributes of arbitration.”50 The Court has also instructed that “the ‘saving clause’ in [Section] 2 indicates [that] the purpose of Congress in 1925 was to make arbitration agreements as enforceable as other con- tracts, but not more so.”51 Applying these doctrines, courts have concluded that the FAA does not invariably shield confidentiality requirements in arbitration agree- ments and have regularly held such requirements unen- forceable under generally applicable legal principles.52 If requirements. 138 S. Ct. at 1622. Indeed, the Epic Court relied upon AT&T Mobility v. Concepcion, 563 U.S. 333 (2011), which held that Sec. 2 did not permit invalidating an individual arbitration requirement based on state law. Here, by contrast, numerous judicial decisions—both be- fore and after Concepcion—clearly establish that FAA Sec. 2 does per- mit invalidation of confidentiality requirements under generally applica- ble state law principles. And, as I explain below, other Supreme Court precedent clearly establishes (and my colleagues do not dispute) that fed- eral law generally precludes federal-judicial enforcement of contracts in violation of the NLRA. A small sampling of the many judicial decisions invalidating confi- dentiality requirements in arbitration agreements includes decisions of the Ninth and Eleventh Circuits, as well as state supreme courts in Ha- waii, Kentucky, and Washington: Larsen v. Citibank FSB, 871 F.3d 1295, 1308, 1318‒1320 (11th Cir. 2017) (invalidating and severing pro- vision requiring parties to “keep confidential any decision of an arbitra- tor”); Narayan v. Ritz-Carlton Development Co., 400 P.3d 544, 555‒556 (Haw. 2017) (invalidating clause providing “[n]either a party, witness, or the arbitrator may disclose the facts of the underlying dispute or the contents or results of any negotiation, mediation, or arbitration hereunder without prior written consent of all parties”), cert. denied 138 S. Ct. 982 (2018); Schnuerle v. Insight Communications Co., 376 S.W.3d 561, 577‒ 579 (Ky. 2012) (invalidating and severing provision prohibiting disclo- sure of “the existence, content or results of any arbitration or award”); Davis v. O’Melveny & Myers, 485 F.3d 1066, 1071, 1078‒1079 (9th Cir. 2007) (invalidating provision prohibiting, inter alia, disclosure of “the content of the pleadings, papers, orders, hearings, trials, or awards in the arbitration”), overruling on other grounds recognized by Ferguson v. Co- rinthian Colleges, Inc., 733 F.3d 928, 933‒934 (9th Cir. 2013); Zuver v. Airtouch Communications, Inc., 103 P.3d 753, 764‒765, 769 (Wash. 2004) (invalidating and severing provision that “[a]ll arbitration proceed- ings, including settlements and awards, under the Agreement will be con- fidential”). See generally Kimberly J. Winbush, Annotation, Validity of Clause of Arbitration Agreement Requiring Confidentiality of Arbitra- tion Proceedings, 26 A.L.R. 7th Art. 7 (2017) (collecting cases). While other courts have, unsurprisingly, upheld individual confiden- tiality agreements against unconscionability challenges, those decisions cannot logically establish that all such provisions must be upheld, against whatever challenge. Cf. Davis v. O’Melveny & Myers, above, 485 F.3d at 1079 (“The concern is not with confidentiality itself but, rather, with the scope of the language [at issue]. . . . ‘[A]lthough courts have accepted confidentiality provisions in many agreements, it does not necessarily follow that this confidentiality provision is conscionable.’”) (quoting Zu- ver, above, 103 P.3d at 765). For the same reason, contrary to my col- leagues, the Ninth Circuit’s 2017 conclusion that a 2014 California in- termediate state court decision rendered a particular arbitration confiden- tiality provision lawful does nothing to undermine the many earlier and later judicial decisions establishing that FAA Sec. 2 generally permits DISH NETWORK, LLC 17 confidentiality were a fundamental attribute of arbitration, these judicial decisions could not stand. For all of these reasons, then, confidentiality restrictions are not fundamental attributes of arbitration, and chal- lenges under the NLRA to such restrictions are not some- how barred by the FAA as disguised attacks on arbitra- tion.53 As a general matter, confidentiality agreements that re- strict employees’ Section 7 right to discuss terms and unconscionability defenses to such provisions. Poublon v. C.H. Robin- son Co., 846 F.3d 1251, 1266‒1267 (9th Cir. 2017). 53 The Supreme Court’s analysis in Epic Systems rested fundamen- tally on its conclusion that bilateralism is a fundamental attribute of ar- bitration. 138 S. Ct. at 1622. The Court said nothing about confidenti- ality, and so Epic Systems does not govern the issue addressed in this case. 54 The Supreme Court’s view on this issue has been consistent and unequivocal. See, e.g., National Licorice Co. v. NLRB, 309 U.S. 350, 359‒361 (1940) (affirming Board’s authority to prevent enforcement of individual employment contracts waiving Sec. 7 rights); NLRB v. Erie Resistor Corp., 373 U.S. 221, 237 fn. 14 (1963) (Court “would not . . . honor a private settlement which purported to deny to employees the rights guaranteed them by the Act”); J.I. Case Co. v. NLRB, 321 U.S. 332, 337 (1944) (“Individual contracts no matter what the circumstances that justify their execution or what their terms, may not be availed of to defeat or delay the procedures prescribed by the National Labor Rela- tions Act looking to collective bargaining . . . . [w]herever private con- tracts conflict with [the Board’s] functions, they obviously must yield or the Act would be reduced to a futility”). My colleagues criticize my reliance on this well-established principle on the grounds that the Board previously affirmed the same proposition in Murphy Oil, above, 361 NLRB at 782. See supra, slip op. at 5-6, fn. 11. But nothing in the Supreme Court’s reversal of Murphy Oil in Epic Systems called this principle into doubt. Moreover, my colleagues’ crit- icism is puzzling in light of their own invocation of the same principle in their discussion of the settlement confidentiality issue in this case. See supra, slip op. at 4 (“[A]s the Supreme Court held long ago, individual agreements between employer and employee prospectively waiving Sec- tion 7 rights violate the Act”). The decisions of the federal courts of appeals—including the Second, Third, Sixth, Seventh, Ninth, and Tenth Circuits—are in accord, stretch- ing back to 1939. See, e.g., E.L. Wiegand Div. v. NLRB, 650 F.2d 463, 467 (3d Cir. 1981) (“By well established principle, private contracts may not be used to legitimate unfair labor practices nor to divest the Board of jurisdiction over such practices”), enfg. as modified 246 NLRB 1143 (1979), cert. denied 455 U.S. 939 (1982); Morio v. North American Soc- cer League, 632 F.2d 217, 218 (2d Cir. 1980) (“the Board in unfair labor practices proceedings has frequently voided contracts negotiated by the employer with individual employees”); Electrical Workers Local 613 (Erie Technological Products), 328 F.2d 723, 727 (3d Cir. 1964) (“the rights of . . . employees under the [NLRA] are not subject to private ad- justment. . . . [s]uch an adjustment, if made, cannot bar the Board’s ex- ercise of its statutory authority”) (citation omitted), decision after remand by 373 U.S. 221 (1963); Modine Mfg. Co. v. Machinists Local Union No. 1382, 216 F.2d 326, 329 (6th Cir. 1954) (“although the employer had bound himself by contract previously to bargain with” union, union could not prevail in suit under Sec. 301 of the [Labor Management Relations Act] where intervening Board election imposed upon employer duty un- der Sec. 8(a)(5) of the Act to bargain exclusively with a different union); Cardenas v. Wilson & Co., 180 F.2d 828, 828‒829 (10th Cir. 1950) (em- ployee could not prevail on breach of contract claim based on contract between employer and employee representative committee that had been conditions of employment are unenforceable as a matter of federal law. The Board and federal courts, including the Supreme Court, have long held that individual contract terms prospectively waiving employees’ rights to engage in activity protected by Section 7 violate the NLRA and are unenforceable.54 And, the Board, with court approval, has routinely held that confidentiality requirements like those at issue here violate the Act when they are imposed in contexts not involving arbitration.55 It follows that, “legally terminated by the National Labor Relations Board”); NLRB v. Thompson Products, 141 F.2d 794, 799‒800 (9th Cir. 1944) (affirming Board’s order invalidating contract with company-supported union), affg. 46 NLRB 514 (1942); NLRB v. Stone, 125 F.2d 752, 756 (7th Cir. 1942) (enforcing Board’s order invalidating individual employment con- tracts seeking “to prevent strikes and labor troubles,” under which “em- ployee bound himself to negotiate any differences with the employer and to submit such differences to arbitration. . . . [b]y this provision the em- ployee not only waived his right to collective bargaining but his right to strike or otherwise protest on the failure to obtain redress through arbi- tration”), enfg. as modified 33 NLRB 1014 (1941), cert. denied 317 U.S. 649 (1942); NLRB v. Indiana & Michigan Electric Co., 124 F.2d 50, 55 (6th Cir. 1941) (where “contracts were inherently unfair and their per- formance a continuing violation of the Act[,] . . . contracts were void ab initio”), remanding on other grounds 20 NLRB 989 (1940); NLRB v. American Mfg. Co., 106 F.2d 61, 66‒67 (2d Cir. 1939) (individual em- ployment contracts restricting employee rights to strike or demand a closed shop or a signed collective-bargaining agreement and providing for unqualified employer right to “hire or discharge any employee . . . regardless of his or their affiliation or non-affiliation with any union,” were unenforceable as contrary to the NLRA), enfg. 5 NLRB 443, 454‒ 455, 470 (1938), order modified and affd. per curiam 309 U.S. 629 (1940). 55 The point can be illustrated with decisions from the First, Second, Fourth, Fifth, Sixth, Eighth, Tenth, and District of Columbia Circuits. See, e.g., Banner Health System v. NLRB, 851 F.3d 35, 41 (D.C. Cir. 2017) (affirming Board’s unanimous conclusion that employer’s confi- dentiality agreement prohibiting discussion of “[p]rivate employee infor- mation (such as salaries, disciplinary action, etc.),” unlawfully “struck at the heartland of Section 7 activity without adequate justification” and noting “‘confidential information’ cannot itself ‘be defined so broadly as to include working conditions.’”) (quoting Double Eagle Hotel & Casino v. NLRB, 414 F.3d 1249, 1260 (10th Cir. 2005), enfg. as modified 341 NLRB 112, 113 (2004) (finding unlawful confidentiality policy covering “disciplinary information, grievance/complaint information, perfor- mance evaluations, salary information, salary grade, types of pay in- creases, [and] termination data for employees who have left the com- pany”), cert. denied 546 U.S. 1170 (2006)), enfg. in relevant part 362 NLRB 1108 (2015); Long Island Assn. for AIDS Care, Inc., 364 NLRB No. 28, slip op. at 1, 4 (2016) (finding unlawful rule prohibiting disclo- sure of, inter alia, “salaries, contents of employment contracts, . . . [and] staff address and phone numbers”), enfd. 696 Fed. Appx. 556 (2d Cir. 2017); Flex Frac Logistics, LLC v. NLRB, 746 F.3d 205, 208 (5th Cir. 2014) (“A ‘workplace rule that forb[ids] the discussion of confidential wage information between employees . . . patently violate[s] section 8(a)(1).’”) (quoting NLRB v. Brookshire Grocery Co., 919 F.2d 359, 363 (5th Cir. 1990)), enfg. 358 NLRB 1131 (2012); NLRB v. Northeastern Land Services, Ltd., 645 F.3d 475, 478, 481‒483 (1st Cir. 2011) (finding unlawful confidentiality provision in contract for employment prohibit- ing disclosure to third parties of “terms of this employment, including compensation”), enfg. 355 NLRB 1154 (2010); Jewish Home for the El- derly of Fairfield County, 343 NLRB 1069, 1077 (2004) (finding unlaw- ful confidentiality rule covering “wages, merit increases, evaluations, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 notwithstanding the FAA, confidentiality provisions that prospectively waive employee rights to engage in pro- tected Section 7 communications are also unlawful under the NLRA when they appear in arbitration agreements, just as in any other contract.56 The majority is mistaken when it contends that the Su- preme Court’s “explicit refusal” to apply Section 2 of the FAA to a federal illegality defense in Epic Systems, along with its “pointed” citation of a circuit judge’s dissenting opinion, means that illegality of an arbitration provision under the NLRA can never come within Section 2 of the FAA. See supra, slip op. at 6. The Court expressly de- clined to reach the issue, and the Board should not read into the Court’s opinion a holding that it chose not to make.57 Notably, the Court has held both that Section 2 of the FAA makes arbitration agreements “as enforceable as other contracts, but not more so,”58 and that, despite the absence of a “statutory code of federal contract law,” the Court’s decisions “leave no doubt that illegal promises will not be enforced in cases controlled by the federal law.” Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 76 (1982) (emphasis added).59 Contrary to my colleagues’ view, this authority (along with the many consonant Board and court decisions already discussed) should lead the Board to conclude that an arbitration-agreement provision that violates the NLRA is just as unlawful as the same pro- vision in any other type of contract would be. 3. In light of these well-established legal principles, it is clear that California Commerce Club was wrongly paychecks, and other information”), enfd. 174 Fed. Appx. 631 (2d Cir. 2006); NLRB v. Main Street Terrace Care Center, 218 F.3d 531, 539 (6th Cir. 2000) (“rule prohibiting employee wage discussions violates § 8(a)(1) despite the fact that the rule was unwritten and routinely unen- forced”), enfg. 327 NLRB 522 (1999); Medeco Security Locks, Inc. v. NLRB, 142 F.3d 733, 744‒748 (4th Cir. 1998) (finding unlawful confi- dentiality restrictions on employee discussion of performance tests and drug test), enfg. in relevant part 322 NLRB 664 (1996); NLRB v. Van- guard Tours, Inc., 981 F.2d 62, 66‒67 (2d Cir. 1992) (finding unlawful rule prohibiting discussing wages, hours, and working conditions while on company property or on duty), enfg. in relevant part 300 NLRB 250 (1990); Wilson Trophy Co. v. NLRB, 989 F.2d 1502, 1511 (8th Cir. 1993) (finding unlawful prohibition of wage discussion and opening paychecks in warehouse), enfg. 307 NLRB 509 (1992); Jeannette Corp. v. NLRB, 532 F.2d 916, 919‒920 (3d Cir. 1976) (finding unlawful unwritten rule prohibiting employee discussion of wages), enfg. 217 NLRB 653 (1975). 56 The majority criticizes this conclusion as “precisely the same argu- ment advanced by the Board” in Murphy Oil, above, 361 NLRB at 779, and “laid . . . to rest” in Epic Systems. See supra, slip op. at 5-6. This is incorrect because Murphy Oil and Epic Systems involved individual ar- bitration requirements, which, as I have explained, are not the same thing as the confidentiality requirements at issue here. 57 The Court itself has found unfortunate occasion to remind the Board that issues the Court has not decided remain “obviously,” unde- cided. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 581 (1988). decided and that the majority errs in applying that decision today. Examining the Board’s decision with care reveals its errors. The confidentiality provision there specified that: “[t]he arbitration shall be conducted on a confidential basis and there shall be no disclosure of evidence or award/decision beyond the arbitration proceeding.”60 The Board’s first error was to read a limit into this restriction by asserting that employees necessarily would understand the provi- sion did not restrict employees’ protected disclosure and discussion of “the existence of the arbitration, their claims against the employer, the legal issues involved, or the events, facts, and circumstances that gave rise to the arbi- tration proceeding.”61 In fact, employees are far more likely to think that a requirement that arbitration “be con- ducted on a confidential basis” means that employees may not talk about the arbitration, period.62 In any case, the California Commerce Club Board rec- ognized that even read narrowly, the confidentiality pro- vision would restrict employee communication that “lies at the heart of protected Section 7 activity.”63 This, of course, is correct. The Board assumed, without deciding, that employer interests in saving resources, preventing reputational injury, and facilitating the cooperative ex- change of discovery did not outweigh the impact of the confidentiality provision on the exercise of Section 7 rights, and that the provision would accordingly violate the Act under Boeing, 365 NLRB No. 154 (2017), if main- tained as an employer-promulgated work rule. That con- clusion, too, is sound.64 But the Board’s ultimate 58 Prima Paint, above, 388 U.S. at 404 fn. 12 (emphasis added). 59 In Kaiser Steel, the Court held that a federal court entertaining a breach-of-contract claim under Sec. 301 of the Labor Management Re- lations Act must adjudicate the employer’s defenses that the contractual term at issue violated federal antitrust laws and Sec. 8(e) of the NLRA. The Court reasoned that “[w]ere the rule otherwise, parties could be com- pelled to comply with contract clauses, the lawfulness of which would be insulated from review by any court.” Id. My colleagues protest that I give insufficient weight to the Court’s uncontroversial observation in Epic Systems that arbitration agreements are fundamentally contrac- tual—i.e., that they are “agreements”—and that Congress has struck a policy balance with respect to their enforcement that the Board cannot change. But the Court has also made clear—in Prima Paint, Kaiser Steel, and elsewhere—that the balance struck by Congress in the FAA does not give arbitration agreements a privileged status among all con- tracts, and there is “no doubt” that federal courts will not enforce agree- ments illegal under federal law. 60 369 NLRB No. 106, slip op. at 1. 61 Id. slip op. at 4. 62 Cf. Ingram Book Co., 315 NLRB 515, 516 fn. 2 (1994) (“Rank- and-file employees do not generally carry lawbooks to work or apply legal analysis to company rules as do lawyers, and cannot be expected to have the expertise to examine company rules from a legal standpoint”). 63 369 NLRB No. 106, slip op. at 3‒4 (citation omitted). 64 Although I adhere to my dissenting view in Boeing, it is clear that, even under Boeing, broad restrictions on core protected conduct should DISH NETWORK, LLC 19 conclusion—that the Federal Arbitration Act prevented finding a violation of the National Labor Relations Act— was flatly wrong, for all the reasons already described here. The California Commerce Club Board first invoked Su- preme Court precedent65—none of it involving confiden- tiality provisions, much less the interplay of the FAA and the NLRA—to conclude that “[t]he FAA . . . requires that the confidentiality provision must be enforced according to its terms absent a contrary congressional command.”66 As shown, however, the FAA requires no such thing, and the cases cited by the Board are not to the contrary. Thus, the Board relied upon the Court’s statement in Volt, supra, repeated in American Express, supra, that parties are gen- erally free to specify by contract “the rules under which . . . arbitration will be conducted.”67 But Volt involved the enforceability of an arbitration agreement’s choice-of-law provision, where that provision imposed limitations on ar- bitrability not imposed by the FAA.68 American Express and AT&T Mobility, in turn, upheld contractual provisions requiring bilateral arbitration and waiving class proce- dures. By contrast, the confidentiality restrictions here have nothing to do with the choice of law or applicable be found categorically unlawful, i.e., no proffered employer justification can outweigh such restrictions’ impact on Sec. 7 rights. See Boeing, above, slip op. at 4 (positing that “a rule that prohibits employees from discussing wages or benefits with one another” would be categorically unlawful). 65 American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013); AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011); Volt Information Sciences, Inc. v. Board of Trustees of the Leland Stanford Junior University, 489 U.S. 468 (1989). 66 369 NLRB No. 106, slip op. at 5. 67 489 U.S. at 479. 68 Id. 69 The majority is mistaken, then, in contending that confidentiality provisions are limited in scope to specifying the rules under which arbi- tration will be conducted, within the meaning of American Express, above. 70 The majority criticizes my discussion of the actual holdings of the Supreme Court in cases it relies upon, declaring that “in the Court’s view,” the fundamental attributes of arbitration include its speed, relative low cost, and informality. See supra, slip op. at 7. The fact remains that the Supreme Court has never specifically ruled on the availability of Sec. 2 challenges to confidentiality provisions under the FAA. It has, how- ever, declined to review at least one of the many lower court decisions expressly permitting such challenges. See supra, fn. 52. By contrast, the majority’s claim that the FAA invariably insulates confidentiality provi- sions from any Sec. 2 challenge does not reflect any view ever expressed by the Supreme Court. It rests instead on isolated language in two deci- sions by the Fifth and Second Circuits. As I explain below, these circuit court decisions do not truly support the majority’s conclusion, and they directly conflict with many other judicial constructions of the FAA. The majority also criticizes my observation that the Supreme Court has not decided the issue before us, pointing out that the Board in Murphy Oil, above, 361 NLRB at 788, similarly observed that the Supreme Court had not, at that time, addressed the different issue presented there. See supra, slip op. at 5-6 fn. 11. My colleagues’ criticism reflects the rules of procedure, the nature of the claims that can be as- serted, how the parties will present evidence, or how the arbitrator will conduct the proceeding. Rather, these re- strictions purport to dictate employee conduct outside of and entirely independent of the arbitration proceeding, in- cluding restraining employee speech long after arbitration proceedings shall have been concluded.69 Thus, the Su- preme Court cases relied upon by the majority have noth- ing to say to the specific issue of the enforceability of con- fidentiality restrictions in this case or any other.70 More broadly, contrary to the majority, the Supreme Court has never so much as suggested that strict party con- fidentiality is a fundamental attribute of arbitration. In AT&T Mobility, supra, the Court mentioned parties’ abil- ity to specify “that proceedings be kept confidential to pro- tect trade secrets,” in the course of listing desirable fea- tures of arbitration that could be impacted by a rule requir- ing the availability of class-wide arbitration.71 The Cali- fornia Commerce Club Board further relied upon two cir- cuit court decisions rejecting challenges—not made under the National Labor Relations Act—to specific confidenti- ality provisions, but those decisions likewise have little relevance here.72 By contrast, as noted above, other courts mistaken view that Epic Systems somehow decided that no arbitration provisions—except exclusivity provisions directly interfering with em- ployee access to the Board—can ever be held to violate the National La- bor Relations Act. Such a broad reading of Epic Systems is unfounded, for reasons already explained. 71 563 U.S. at 344‒345 (emphasis added). A Board order invalidating broad restrictions on employees’ ability to discuss terms and conditions of employment would in no way impact this feature of arbitration: the Board recognizes and preserves employers’ right to protect trade secrets and similar proprietary information, See, e.g., Macy’s, Inc., 365 NLRB No. 116, slip op. at 4 (2017) (“the Board has repeatedly held that em- ployees may be lawfully disciplined or discharged for using for organi- zational purposes information improperly obtained from their em- ployer’s private or confidential records”) (citing cases). 72 369 NLRB No. 106, slip op. at 5, citing Iberia Credit Bureau, Inc. v. Cingular Wireless LLC, 379 F.3d 159 (5th Cir. 2004) and Guyden v. Aetna, 544 F.3d 376 (2d Cir. 2008). The consumer plaintiffs in Iberia argued that an arbitration confiden- tiality requirement unconscionably deprived them of the ability to estab- lish precedent and gave an unfair informational advantage to repeat- player companies, who had first-hand knowledge of how prior arbitra- tions against them had faired. 379 F.3d at 175. The court rejected this specific attack as, “in part, an attack on the character of arbitration itself,” because: [i]f every arbitration were required to produce a publicly available, “precedential” decision on par with a judicial decision, one would ex- pect that parties contemplating arbitration would demand discovery similar to that permitted under Rule 26, adherence to formal rules of evidence, more extensive appellate review, and so forth—in short, all of the procedural accoutrements that accompany a judicial proceeding. But part of the point of arbitration is that one “trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.” Id. at 175‒176 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plym- outh, Inc., 473 U.S. 614, 628 (1985)). In context then, it is clear that the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20 have squarely held that the FAA does not preclude invali- dation of confidentiality provisions in arbitration agree- ments.73 The California Commerce Club Board also relied upon the Supreme Court’s distinction in Epic Systems between “things employees just do for themselves in the course of exercising their right to free association in the workplace” and “the highly regulated, courtroom-bound ‘activities’ of class and joint litigation.”74 The Board concluded that dis- cussing work-related issues “they either know about firsthand or have heard about from their colleagues,” was something employees “just do” (and accordingly, could not be prohibited consistent with the Act), but that disclos- ing an arbitration award or discussing work-related “infor- mation obtained solely through participating as a party in an arbitral proceeding” were not “things that employees ‘just do’”—and could lawfully be prohibited. This dis- tinction is completely artificial. If employees involved in an arbitration proceeding believe that their coworkers could help them to improve working conditions (or vice versa), then they obviously will share information ob- tained through arbitration with them—assuming that they are not prohibited by their employer (or a federal court) from doing so. How information about terms and condi- tions is acquired is irrelevant to whether it is useful for protected concerted activity under the National Labor “confidentiality” that the court described as part of the “character of ar- bitration itself,” was not strict party confidentiality, but rather arbitral privacy, in the sense described above: that arbitration awards are not gen- erally made public and do not create public, precedential law. Nothing about a Board order invalidating a broad restriction on employee speech in these cases would interfere with arbitral “confidentiality” in this sense or tend to change the character of any ensuing arbitration in the ways that concerned the Iberia court. Nor does Guyden v. Aetna provide true support for the position of the California Commerce Club Board. There, the Second Circuit rejected an argument that a confidentiality requirement “conflict[ed] with one of the purposes of the SOX [Sarbanes-Oxley Act] whistleblower provi- sion—to communicate to other employees that their rights will be pro- tected if they report wrongdoing.” 544 F.3d at 384. The court echoed the Fifth Circuit’s observation in Iberia, above, that an “attack on the confidentiality provision is, in part, an attack on the character of arbitra- tion itself,” reiterated broad Supreme Court language warning against generalized attacks on arbitration, and concluded that “[b]ecause confi- dentiality is a paradigmatic aspect of arbitration, our determination that SOX whistleblower claims are arbitrable precludes Guyden’s challenge to the privacy of the resulting arbitration.” Id. at 385. But the Sarbanes- Oxley Act is not the National Labor Relations Act. The Second Circuit itself has recognized that under the NLRA, employers may not impose workplace-confidentiality restrictions on employees. See, e.g., NLRB v. Long Island Assn. for AIDS Care, Inc., supra, 870 F.3d at 88‒89 (em- ployer violated Sec. 8(a)(1) by firing employee for refusing to sign un- lawful confidentiality agreement). And, as far back as 1939, the Second Circuit recognized that individual employment contracts that violate the NLRA are unenforceable. See NLRB v. American Mfg. Co., supra, 106 F.2d at 66‒67. Relations Act. As already explained, arbitration of work- related disputes is highly likely to reveal work-related in- formation, and discussion of work-related information for the purpose of collective bargaining or other mutual aid or protection, lies at the heart of what employees “just do” for themselves under the Act’s protection. That such in- formation may have been learned during the course of an arbitration proceeding makes no difference. Finally, in a last-paragraph about-face, the California Commerce Club Board actually conceded that an em- ployer would violate the Act by imposing discipline against an employee to directly enforce an arbitration-con- fidentiality provision against protected employee discus- sions.75 Yet the Board appeared to contemplate that an employer could utilize judicial or arbitral procedures to achieve the same illegal result.76 Both the NLRA and the Norris-LaGuardia Act foreclose that possibility. The Nor- ris-LaGuardia Act protects essentially the same employee conduct protected by the NLRA, by stripping the federal courts of jurisdiction to enjoin that conduct. Thus, under Norris-LaGuardia, a federal court is explicitly prevented from enjoining employees from “[g]iving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence.”77 This stat- utory language on its face precludes a court from ordering 73 See cases cited supra at fn. 52. Notably, the Supreme Court of Kentucky specifically rejected arguments based on AT&T Mobility and Iberia when it invalidated the arbitration-confidentiality provision at is- sue in Schnuerle, above, 376 S.W. 3d at 577‒579, while the Supreme Court of Hawaii specifically reaffirmed its conclusion that the confiden- tiality provision at issue in Narayan, above, was unlawful in Hawaii after remand from the United States Supreme Court for reconsideration under DIRECTTV, Inc. v. Imburgia, 577 U.S. 47 (2015), a decision following AT&T Mobility. 400 P.3d 544, 547. The United States Supreme Court subsequently denied certiorari in Narayan. 138 S. Ct. 982 (2018). See also Larsen v. Citibank, above (11th Circuit decision invalidating confi- dentiality provision after AT&T Mobility); Seibert v. Precision Contract- ing Solutions, LP, Civil Action No. 18‒818, 2019 WL 935637 at *7‒8 (D.D.C. 2019) (finding confidentiality clause in arbitration agreement void as unlawful under another federal statute: “there is no conflict be- tween [15 U.S.C.] § 45b and the FAA since the broad confidentiality condition in the contract under review is neither ‘fundamental’ to arbi- tration [AT&T Mobility LLC v.] Concepcion, 563 U.S. [333] at 339 [(2011)], nor consistent with the public nature of federal court dockets . . . should an award need confirmation.”). As noted above, and contrary to my colleagues’ claim, this authority clearly establishes the availability of a defense against arbitration-confidentiality provisions under FAA Sec. 2. It is in no way undermined by the Ninth Circuit’s 2017 conclu- sion that some of its earlier decisions applying California state law had been superseded by an intervening state court decision. See supra, fn. 52. 74 369 NLRB No. 106, slip op. at 6 (quoting Epic Systems, above, 138 S. Ct. at 1625). 75 Id. 76 Id. 77 29 U.S.C. § 104. DISH NETWORK, LLC 21 an employee not to discuss information related to a work- place controversy, even if it was subject to arbitration and even if the information was acquired through the arbitra- tion proceeding. Simply put, the Norris-LaGuardia Act protects employee speech related to employment arbitra- tion, and it precludes federal courts from silencing em- ployees on employer demand.78 Of course, independent of the Norris-LaGuardia Act, the Supreme Court has held that a party violates the NLRA by seeking to achieve through the courts an end that is itself unlawful under the Act.79 Accordingly, where the Act would prevent an em- ployer from disciplining an employee for protected dis- cussion of terms and conditions of employment, it also prevents the employer from seeking to suppress that speech through a judicial or arbitral forum. In sum, the California Commerce Club Board got the accommodation framework described in Epic Systems precisely backwards when it concluded that the NLRA and the FAA cannot be reconciled and that the FAA must displace the NLRA with respect to confidentiality provi- sions in mandatory arbitration agreements. To the con- trary, holding such terms unlawful where they conflict with the core protections of the NLRA—in mandatory ar- bitration agreements, just as in any other contract— properly accommodates the FAA and the NLRA with no harm to either statute. III. Today’s decision reinforces a disturbing trend in the modern American workplace. “Boilerplate, coercive em- ployment contracts are now widely used for many (if not the majority of) private sector, non-unionized employees in the United States, including lower-wage hourly work- ers.”80 Besides mandating arbitration of most work-re- lated disputes, many of these contracts also impose confi- dentiality restrictions that keep workers from seeking 78 Today’s majority criticizes this observation on the grounds that the Board found in Murphy Oil, supra, 361 NLRB at 789, that individual arbitration agreements violated the policies of the Norris-LaGuardia Act. See supra, slip op. at 5-6 fn. 11. But, while it is true that the Supreme Court subsequently rejected that aspect of the Board’s Murphy Oil deci- sion in Epic Systems, 138 S. Ct. at 1627, nothing about the Court’s dis- cussion of the issue there addresses the distinct point that the plain lan- guage of the Norris-LaGuardia Act prohibits judicial interference with employee discussion of the existence of, or facts involved in, controver- sies concerning their terms or conditions of employment. 29 U.S.C. §§ 104(e), 113(c). Here, again, citing Epic Systems will not do the work that the majority requires. 79 See Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 737 fn. 5 (1983) (the Board may enjoin suits that have an objective that is illegal under federal law). The Board has prevented such efforts, includ- ing those that implicate arbitration, which is otherwise favored in Board doctrine. See, e.g., Road Sprinkler Fitters Local Union 669 (Firetrol Protection Systems), 365 NLRB No. 83, slip op. at 1 (2017) (ordering union to cease and desist from seeking to enforce or apply an unlawful support from their coworkers, third parties, and the gov- ernment in their attempts to redress wrongs and improve working conditions.81 Given the prevalence of mandatory individual arbitration, protecting employees’ ability to talk with each other, as a prelude to protected concerted activity, is vitally important to achieving the goals of the National Labor Relations Act. Dissenting in Epic Systems, the late Justice Ruth Bader Ginsburg warned that that decision threatened to resurrect “take-it-or-leave-it labor contracts harking back to the type called ‘yellow-dog,’” the enforcement of which has been long proscribed by the Norris-LaGuardia Act.82 The Court majority rejected her concern as, “like most apoca- lyptic warnings, . . . prov[ing] a false alarm,” and insisted that the Epic Systems “decision merely decline[d] to read into the NLRA a novel right to class action procedures.”83 But the Board’s profound misreading of Epic Systems to- day and in California Commerce Club has proved Justice Ginsburg right. Instead of again contributing to the trend of silencing employees—as it has recently done in a string of decisions84—the Board should do its duty and stand against this trend, preserving bedrock protections for American workers that have been part of the law for nearly 90 years. Because today’s decision fails to do so, I dissent. Dated, Washington, D.C. March 18, 2021 ______________________________________ Lauren McFerran, Chairman NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES contract term “through grievance, arbitration, or litigation”); Teamsters Local 776 (Rite Aid), 305 NLRB 832, 835‒836 (1991) (union violated the Act by maintaining lawsuit under Sec. 301 of the LMRA seeking to enforce arbitral award that was incompatible with the Board’s unit-clar- ification decision), enfd. 973 F.2d 230 (3d Cir. 1992), cert. denied 507 U.S. 959 (1993); Textile Workers Local 1029 (International Paper Box Machine Co.), 187 NLRB 636, 636‒637 (1970) (ordering union to cease and desist from seeking judicial enforcement of illegal fines), affd. 409 U.S. 213 (1972); Machinists Booster Lodge No. 405 (Boeing Co.), 185 NLRB 380, 382‒383 (1970) (same), enfd. in relevant part 459 F.2d 1143 (D.C. Cir. 1972), affd. 412 U.S. 84 (1973). 80 Flanagan & Gerstein, supra fn. 5, 54 U.S.F. L. REV. at 443. 81 See generally, Alexander J.S. Colvin, The Metastasization of Man- datory Arbitration, 94 CHI.-KENT L.REV.3 (2019); Cynthia Estlund, The Black Hole of Mandatory Arbitration, 96 N.C. L. REV. 679 (2018); Flanagan & Gerstein, supra fn. 5. 82 138 S. Ct. at 1635, 1648‒1649 (Ginsburg, J., dissenting). 83 138 S. Ct. at 1630. 84 See fn. 5, supra. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22 POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vi- olated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT maintain a mandatory arbitration agree- ment that our employees reasonably would believe bars or restricts them from exercising their right to file charges with the National Labor Relations Board. WE WILL NOT maintain a mandatory arbitration agree- ment that requires settlements of employment-related dis- putes to remain confidential. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL rescind the mandatory arbitration agreement in all its forms, or revise it in all its forms to make clear that it does not restrict you from exercising your right to file charges with the National Labor Relations Board and does not require settlements of employment-related dis- putes to remain confidential. WE WILL notify all applicants and current and former employees who were required to sign or otherwise became bound to the mandatory arbitration agreement in any of its forms that the mandatory arbitration agreement has been rescinded or revised and, if revised, we will provide them a copy of the revised agreement. DISH NETWORK, LLC The Board’s decision can be found at www.nlrb.gov/case/27-CA-158916 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273‒1940.